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HEPBURN-DOLLIVER BILL. 



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FULL HEARINGS 






BEFORE THE 



COMMITTEE ON THE JUDICIARY 



HOUSE OF REPRESENTATIVES 

ON THE 

BILL (H. R. 4072) ENTITLED "A BILL TO LIMIT THE EFFECT OF THE 

REGULATIONS OF COMMERCE BETWEEN THE SEVERAL STATES 

AND WITH FOREIGN COUNTRIES IN CERTAIN CASES/' 



Committee on the Judiciary, House of Kepresentatives of the United States, 

Fifty-eighth Congress. 

members of committee. 
JOHN J. JENKINS, Wisconsin, Chairman. 



RICHARD WAYNE PARKER, New Jersey. 
DE ALVA S. ALEXANDER, New York. 
VESPASIAN WARNER, Illinois. 
CHARLES E. LITTLEFIELD, Maine. 
LOT THOMAS, Iowa. 

SAMUEL LELAND POWERS, Massachusetts. 
ROBERT M. NEVIN, Ohio. 

HENRY W. PALMER, PENNSYLVANIA. 



GEORGE A. PEARRE, Maryland. 
J. N. GILLETT, CALIFORNIA. 
DAVID A. DE ARMOND, MISSOURI. 
DAVID H. SMITH, KENTUCKY. 
HENRY D. CLAYTON, Alabama. 
ROBERT L. HENRY, Texas. 
JOHN S. LITTLE, Arkansas. 
WILLIAM G. BRANTLEY, GEORGIA. 



WASHINGTON: 

GOVERNMENT PEl>''fING OFFICE, 
1904. 



H.^; 



B 



\ 













INDEX 



Wednesday morning, January 20: Page. 

Mr. Andrew Wilson 89 

Rev. James Cannon -92 

Mrs. Margaret Dye Ellis 92 

Mr. C. J. Hexamer 93 

Mr. Gustav Voss 96 

Mr. Karl A. M. Scholtz 97 

Wednesday morning, March 2: 

Rev. E. C. Dinwiddle 5 

Hon. Swager Sherley 33 

Dr. William F. Crafts 99 

Wednesday afternoon: 

Hon. John A. Sullivan 104 

Mrs. J. Ellen Foster Ill 

Maj. Duncan B. Harrison 118 

Thursday morning, March 3: 

Rev. F. E. C. Haas 175 

Rev. Frederic Wischan 177 

Rev. G. A. Boehrig 178 

Rev. W. Oeser 180 

Hon. C. F. Scott 180 

Dr. Mary Walker 185 

Mr. William C. Lilley 187 

Rev. C. T. Winbigler 189 

Mr. G. J. Obermann 191 

Thursday afternoon: 

Hon. Chas. Q. Tirrell 196 

Mrs. Fernande Richter 199 

Rev. S. E. Nicholson 203 

Miss Phoebe Cousins 207 

Mr. Joel Borton 210 

Mr. Owen Keller 211 

Mr. P. A. Wildermuth 212 



Thursday afternoon: Page. 

Mr. Frank Higgins 218 

Maj. Duncan B. Harrison (ad- 
ditional statement) 118 

Friday morning, March 4: 

Mr. Noah Guter 220 

Capt. Jacob L. Bieler 221 

Mr. Andrew Ams 222 

Dr. F. W. Stuart 223 

Mr. Joshua L. Bailey 224 

Rev. E. C. Dinwiddle 87 

Dr. L. B. Wilson 228 

Mr. Arthur Stabler 229 

Mr. Robert Crain 45 

Mr. W. M. Hough 59 

Friday afternoon: 

Hon. Walter I. Smith 71 

Mr. Andrew Wilson 80 

Rev. E. C. Dinwiddle 22 

Capt. J. L. Bieler (additional 

statement) 248 

Mr. Adolph Timm 250 

Dr. W. F. Crafts 252 

Rev. O. R. Miller 253 

Thursday morning, March 24: 

Hon. W. M^. Hough 275 

Thursday afternoon: 

Hon. W. Ml Hough 289 

Mr. Robert Grain 296 

Hon. J. A. Keliher 305 

Rev. E. C. Dinwiddle 232 

Hon. Wm. S. McNary 245 

Hon. W. M. Hough 246 

3 



HEPBUKN BILL. 



Committee on the Judiciary, 

House of Representatives, 

Wednesday^ March ^^, 190Ii>, 
The Committee met at 10.30 o'clock a. m., Hon. J. J. Jenkins in 
the chair. 

The Chairman. In order to avoid any misunderstanding, it has been 
agreed that Mr. Dinwiddie will represent the friends of the bill, and 
Mr. Bartholdt, of Missouri, will represent the gentlemen opposed to 
the bill, and they will make the arrangements between themselves as 
to the division of time, and if they disagree the committee will have 
to determine it for them. 

STATEMENT OF EEV. EDWIN C. DIFWIDDIE, LEGISLATIVE SUPEE- 
IKTEKDEKT OF THE AMEEIGAN AKTISALOOK LEAGUE, 31 AND 
32 BLISS BTJILDIKG, WASHINGTON, D. G. 

Mr. Dinwiddie. Mr. Chairman and gentlemen of the committee, 
we are here this morning in support ot H. R. 4072, which is popu- 
larly known as the Hepburn-Dolliver bill. In as much as there are a 
number of the members of the committee here who were not present 
at the hearing in Januar}^ it has been suggested upon both sides that 
it might be wise this morning to commence de novo and make our 
statements with reference to the bill and what it purports to do, and 
we shall introduce some other speakers representing affiliated organi- 
zations, and will reserve the rignt at the close of the hearing to rebut 
arguments that may be made upon the other side. 

This proposed law is designed to supplement what was known as 
the Wilson law, approved August 8, 1890, and by which undoubtedly 
Congress and the people expected that the entire control of the liquor 
traffic within their own borders should be left in the hands of the 
people in the several States. 

A few facts relative to the necessity for that legislation, as well as 
for this proposed, will be entirely in place. 

Immediately after a decision by the Supreme Court in 1890, in the 
case of Leisy v, Hardin (135 U. S. 100), in which it was held that 
''The State had no power, without Congressional permission to do so, 
to interfere by seizure, or by any other action, in the prohibition of 
importation and sale by a foreign or nonresident importer of liquors 
in unbroken original packages," there sprung up in several ot the 
States under the prohibitory policy great numbers of what were called 
"original package" saloons. The proprietors would buy their liquors 
without the State and have them sent in and sell them in the unbroken 
original packages, although the law of the State or the community in 
which they did business forbade the traffic in intoxicating liquors. 



6 HEPBURN BILL. 

This created widespread indignation and gave rise to a stern demand 
from all over the country for redress from these unbearable condi- 
tions. Congress responded, as it had been suggested in the opinion of 
the court in the case just referred to it could do, by passing the Wil- 
son law, which is given in the House Committee report submitted by 
Mr. Clayton, of Alabama (H. Rept. 3377, to accompany H. R. 15331, 
58th Cong., 2d sess.), and which, by the courtesy of the committee, 
I shall append to this statement for the printed hearings. This report 
in itself is one of the clearest and most concise statements of what this 
bill is and will accomplish that could be made. (Exhibit A.) 

However, in view of the mistaken ideas that appear to prevail among 
certain classes as to the scope of the measure, it seems entirely appro- 
priate that some further facts be stated. 

In construing the Wilson law, after having passed upon its consti- 
tutionality in Rahrer's case (140 U. S., 545) the court held in the sub- 
sequent case, namely, Rhodes v. Iowa (170 U. S., 412), that the effect 
of the law was to forbid the sale bj^ a consignee of liquors imported 
from another State, but that the language of the Wilson law in the 
words, "arrival in such State," etc., contemplated their delivery to the 
consignee before State jurisdiction should attach. 

It is in consequence of this decision that the remedial legislation pro- 
posed in House bill 4072 has been pressed for passage. It is true that 
the '^ original package" saloons, as they were known thirteen years ago, 
are not in operation, but the ingenious violators of laws — brewers, dis- 
tillers, wholesale liquor dealers, retail venders, and others — have 
invented a number of subterfuges by the employment of interstate 
transportation agencies for the violation of law. It should be borne in 
mind that the bill before the committee is not in any sense a prohibition 
law per se, nor will its passage affect only those States having a pro- 
hibitory policy. The conditions it is designed to remove can exist in 
States having the license or dispensary policy, and do so exist to the 
extent of rendering even regulatory legislation of this character to a 
greater or less extent nugatory; and they exist in aggravated form in 
States having prohibitory or local-option laws. 

We base our request for the passage of the law upon the broad 
principle that Congress should by law, as we believe it to be fully 
empowered to do under the Constitution, remove the obstacles to the 
successful carrying out of the internal policy of the State on this 
question, whatever that policy may be. Nor can it be truthfully 
declared that an inconsiderable portion of our territory is affected by 
the conditions which the decision of the Supreme Court on the Wilson 
law, in the case of Rhodes ^^ Iowa, has permitted to sprmg up and 
flourish in many sections. I think it is safe to say that not less than 
forty States of the Union have prohibitory or local-option laws in some 
form or another, and in many of these States large areas, including 
towns, townships, and counties, are under the operation of local-option 
laws. And it is impossible for them to enjoy the full fruitage of these 
laws, enacted, as we believe, in the proper exercise of their police 
powers, uniformly held by the court to be reserved to the States, with- 
out the remediaf legislation asked, and which undoubtedly Congress 
intended to grant by the Wilson Act, approved August 8, 1890. 

We are asking for no more than is fair and right under the consti- 
tutional powers of Congress when we ask that Congress shall so legis- 
late upon the subject as that the States will have complete jurisdiction 



HEPBURN BILL. 7 

over the subject within their own borders; and so that a nonresident 
of a State, with the connivance of representatives of interstate trans- 
portation agencies, will not be permitted to do what the State properly, 
in the exercise of its judgment on this question, has forbidden its own 
citizens to do. This whole question has been very carefully canvassed 
by many of those familiar with the conditions, and also versed in the 
law, and the legislation now proposed is believed to approach close to 
a proper solution of the question, and as remaining within the proba- 
bility, if not the certainty, of the 'constitutional power of Congress. 

In this connection I feel it is only necessary so say that I think it is 
true beyond any controversy that the States never intended to sur- 
'render — nor in my judgment did they actually surrender — their rights 
to protect the health, property, morals, and lives of their people under 
their police powers, nor do 1 think that any attitude on the part of the 
National Government, whether it be by act of omission or commission, 
by which the effective exercise of these powers by the States will be 
rendered nugatory, will be acquiesced in by the people of the States. 
As further evidence of the uniform policy of the Feoeral Government 
of recognizing the paramount rights of the States to regulate the 
liquor traffic in their own way — whether by license, local option, dis- 
pensary, or prohibitory law — I call attention to section 3243 of the 
Internal Revenue Laws, edition of 1900, which reads as follows: 

"The payment of any tax imposed by the internal-revenue laws for 
carrying on any trade or business shall not be held to exempt any per- 
son from any penalty or punishment provided by the laws of any 
State for carrying on the same within such State, or in any manner to 
authorize the commencement or continuance of such trade or business 
contrary to the laws of such State or in places prohibited by munici 
pal law; nor shall the payment of any such tax be held to prohibit 
any State from placing a duty or tax on the same trade or business, 
for State or other purposes." This, taken in connection with the pas- 
sage of the Wilson law of 1890, and the whole trend of the Federal 
attitude toward the liquor business certainly settles the policy of the 
Federal Government in relation to the rights of the States in this 
matter. 

And we therefore earnestly hope that the committee will recom- 
mend the passage of this bill. Cases of violation of State law which 
are against its policy and detrimental to the health and morals and 
prosperity of its people are possible under the present laws as con- 
strued b}'^ the Supreme Court. Instance after instance of this kind in 
various States could be cited. It seems to me that nothing more 
trustworthy and nothing more important for the consideration of this 
committee and the Congress with reference to the need for such 
legislation and the intolerable situation with which many States arie 
confronted can be cited than the statement of one of the members of 
the House who has personal knowledge of conditions in his State, both 
as a citizen and as a judge upon the bench. And I take the liberty 
therefore of calling to your attention the remarks of this gentleman, 
the Hon. W. I. Smith, of Iowa, who said: 

Mr. Speaker, in the case of Leisy v. Hardin the Supreme Court of the United States 
held that under the interstate-commerce clause of the Constitution one had a right 
to ship liquor into a State in original packages and there sell it in unbroken packages. 
Imm^iately after the decision was handed down Congress passed the Wilson bill, 
providing that upon the arrival of liquors in a State they should be subject to the 
police regulations thereof. The United States Supreme Court, in the Rhodes case, 



8 HEPBURN BILL. ^ 

held that '* arrival ** meant delivery to the consignee. Under this holding the prac- 
tice has grown up in Iowa by whicn a nonresident ships a large number of jugs into 
the State addressed to himself, and then the soliciting agent goes about selling these 
liquors at retail in the town and simply transfers bills of lading, thus carrying on a 
retail business in that town in violation of the will of a majority of its people and 
using the express office as a retail liquor place. 

So flagrant has it become in Iowa that in one of the towns of Colonel Hepburn's 
own county, when I had the honor of presiding on the bench in that district, as high 
as 100 jugs at a time were found in a certain express office addressed by the consign- 
ors to himself as consignee, without any indication that they should all be delivered, 
except to the several assignees of the bill^of lading that might be found after the 
arrival of the goods in the State. 

Under the decision of the Rhodes case these liquors were not subject to seizure 
and could be kept there in large quantities in the office of the express company and 
retailed from there to whomever would pay the case charges, the value of the liquor, 
and the cost of transportation. This harm has been so flagrantly conducted that the 
State supreme court during the last session ordered a writ of injunction to issue 
against one of the express companies, enjoining it from maintaining one of its offices 
as a place wherein to carry on the traffic of intoxicating liquors. 

So flagrant has it become that the Iowa supreme court recently ordered the destruc- 
tion of a large number of boxes containing liquor, found in the office of the express 
company, upon the theory that where they were sent C. O. D. in this way they were 
not sold until delivered and therefore not within the protection of the interstate- 
commerce clause of the Constitution. 

******* 

Now, if we don't want this traffic carried on we ought to have the right to prevent 
a nonresident lowan living in Brother Bartholdt's district sending liquor to himself 
in a dry town, insisting that under the decision of the Rhodes case they are entitled 
to immunity from seizure until they are delivered to the assignee, when he does not 
intend to receive them, and retailing these liquors to whomever will come up and 
advance the value of the liquor and the cost of transportation. 

Similar statements were made by Mr. Hepburn, the author of the 
bill, who made the following statement in support of it as H. R. 15331 
of the Fifty -seventh Congress on the floor of the House in January, 
1903: 

This bill is substantially the act of 1890, with the addition that in the first section 
we have inserted the words " before and after delivery." There is no difference 
between the first section of this bill and the present section except the introduction 
of those words. The original bill made intoxicating liquors introduced into a State 
subject to the law of the State upon ** arrival" within the boundaries of the State. 
Now, the Supreipe Court elected to construe that to mean after the delivery of the 
liquors within the boundaries of the State. After the delivery the State lost sight 
of the liquors and practically lost jurisdiction over them. The State authorities could 
do nothing in the way of the enforcement of the law, and therefore they have sought 
this legislation, giving a State jurisdiction either before or after delivery, after arrival 
within the limits of the State. And why should not this be so? Why should not 
the State of Missouri have jurisdiction over the importation of liquors within the 
State and designed for use in the State? 

Mr ***** * 

It will give the State of Iowa the power to destroy liquors when brought within 
the State if they are there in opposition to the provisions of the law of that State. 
It prevents the importer from fighting the statute of Iowa, because of the interstate 
commerce clause of the Constitution and the legislation thereunder. It will not pre- 
vent the introduction of liquor by any private individual unless it is brought there 
for some illegal purpose. It is not illegal for the gentleman to carry liquors into the 
State of Iowa for his own consumption. There is no statute of that kind. It is the 
illegal sale of the liquor that our statute has been enacted to prohibit. 

* * * * * * * 

We simply want to exercise our power over liquors imported into the State, the 
power that we would have the right to exercise but for the original-package clause 
of the Federal law. That is all. 

Similar statements were made by Judge Lot Thomas, of Iowa, and 
by Mr. Clayton, of Alabama, who reported the bill from the Commitee 



HEPBURN BILL. 9 

on the Judiciary. Similar experiences have been complained of to 
our national headquarters and urgent appeals for our assistance in 
securingf the passage of this remedial legislation from the States of 
Ohio, West Virginia, Maryland, Kansas, North Dakota, Washington, 
Maine, Pennsylvania, North Carolina, Tennessee, Georgia, Texas, and 
from many other States, both North and South. 

A law was enacted by the last legislature of my own State, Ohio, 
giving the municipalities of that State the right to exclude the saloons 
by public vote, and over 160 cities and towns have availed themselves 
of this privilege during the last year and a half. The figures are 
about 160 towns and cities, ranging in population from 15,000 down, 
which, under the provisions of the Seal law passed two years ago in my 
State, have availed themselves • of this privilege and excluded the 
saloons. 

Mr. LiTTLEFiELD. That is Ohio? 

Mr. DiNWiDDiE. Yes, sir; and 900 townships out of the 1,370 in 
round numbers, are absolutely under the operation of prohibitory 
legislation by local option. And the State attorney of our organiza- 
tion, as well as the executive head, representing the federation of all 
the churches and temperance organizations, have appealed to us for 
our help in securing the passage of this measure. In one of the 
counties of the State, from which, by the operation of local option in 
the townships and municipalities of the county, the saloons have been 
excluded, the agents of two of the interstate transportation companies 
have been doing a regular C. O. D. liquor business in violation of the 
State law, but shielded b}^ the decision in the Rhodes v. Iowa case, 
heretofore referred to. 

* The prosecuting attorney, in connection with the county auditor of 
this (Harrison) county, in my own State, has sought to place the prin- 
cipals of these agents upon liquor tax duplicate of tne State on the 
ground that the^y were allowing their offices to be run as liquor stores, 
ut if the decision of the Federal court of the Iowa district is upheld, 
as under the Rhodes decision it is likely to be, no redress will be pos- 
sible, and it will again be found that in a State like Ohio, not having 
the prohibitory policy, citizens of other States can carry on legally in 
local-option territory what the law^ of the State and of the community 
forbids to its own citizens. To show that the situation is a grievous 
and unnatural one, I quote from the opinion of the supreme court of 
the State of Iowa in the case of State v. Pat Hanaphy, aecided May 15, 
1902, as follows: 

These holdings, it is needless to observe, render the power of the State to prohibit 
the traflBc in liquors to a large extent nugatory and leave the agents of nonresident 
dealers to ply their trade with boot leggers and other resident violators of the law 
without effective hindrance; but we have only to declare the law as we find it. It 
is proper to add that all these cases under the authority of which this appeal is dis- 
posed of have been decided by a divided court. The dissent of Justices Harlan, 
Gray, Waite, Shiras, and Brown is supported by very persuasive reasoning and great 
weight of authority, but whatever we may think of the comparative merits of the 
arguments employed, we are in duty bound to follow the authoritative pronounce- 
ments of the court whose decision upon this and kindred questions is final. (90 N. W. 
Reporter, 60.) 

We feel that Congress should strain a point to give to the State full 
and complete exercise of those powers which admittedly were reserved 
to themselves upon the adoption of the Federal Constitution, refer- 
ring especially to the police powers of the State, under which come 



10 HEPBURN BILL. 

all measures for the protection of the life, health, morals, and pros- 
perity of the people within the State, so lon^ as such regulations or 
Prohibitions as the State may provide do not violate any part of the 
ederal Constitution. It is not my purjpose to enter into a discussion 
of the legal or constitutional aspect of the claim presented to the com- 
mittee, although I desire to say that the decisions of the Supreme Court 
touching the liquor question have unquestionably settled the follow- 
ing points, namely: That the State has exclusive and unlimited power 
to deal with the internal liquor traffic as it may see fit, subject always 
to the limitations just referred to (License Cases, Mugler v, Kansas, 
et al.). And in the Bowman v. Northwestern Railway case it was held 
that while a State could pass laws according to its legislative will, regu- 
lating or prohibiting the liquor traffic within the State, it could not 
prevent a nonresident dealer from shipping liquor into the State with- 
out violating the interstate-commerce clause of the Constitution. In 
the subsequent case of Leisy v. Hardin, the}" held further that the 
right of a resident importer to receive goods shipped to himself from 
another State, and the first sale b}^ him of the original unbroken pack- 
age, could not be prohibited by the State without the express permission 
of Congress. 

It may be remarked in passing that for many years theretofore it 
had been held by the Supreme Court that silence on the part of Con- 
gress virtually gave the State permission to act with reference to com- 
merce, which assuredly came within the interstate commerce clause of 
the Constitution. The decision just referred to reversed the previous 
holdings of the court and compelled the passage of the well-known 
Wilson law. This law was held to be constitutional in the case of 
Rahrer (140 U. S., 545), but in the later Rhodes case, in construing- 
the words "arrival in the State," etc., it was held that within the 
meaning of the law "arrival" meant after delivery to the consignee. 
So that the net result of the passage of the Wilson law was simply to 
forbid the sale by the consignee of the goods imported by him from 
another State. Following this decision various subterfuges and schemes 
to evade the local law hsS been devised and plied, at set forth hereto- 
fore, and from these conditions we appeal to Congress for redress. 

The opposition which, it should be remarked, comes from those who 
have pecuniary reasons or interests in the violations of law in order to 
secure a market for their liquors — namely, distillers, brewers, and 
wholesale liquor dealers of the country — is stated to be on constitu- 
tional grounds. 

That has been modified somewhat. On the 20th of January here 
the statement was made that a large portion of the German-American 
population in the country was opposed to this measure on the ground 
that it was an interference with so-called personal liberty and with the 
right to import liquors for personal and family consumption. It will 
be shown, I think, to-day and later on during the hearing that there 
is not by any manner of means a unanimous opinion on the subject as 
suggested bv some of our German-American friends. It will be 
shown also that in practically no State of the Union is there any eflfort 
to interfere with the personal or family consumption of liquors b3'' 
importation from abroad or from sister iStates. I have the testimony 
from a large number of States gotten from those qualified to speak, 
and I will introduce it at the proper time and ask that it appear in 
the printed hearings supplemental hereto. (Exhibit B.) 



HEPBURN BILL. 11 

The claim is made first that the proposed legislation is unconstitu- 
tional because it is a delegation of (congressional authority to the State, 
or because the exercise of the powers conferred would give to the State 
extraterritorial jurisdiction over interstate shipments of liquors. 1 
think it needless to argue this point. Nothing can be clearer than the 
uttemnce of Mr. Chief Justice Fuller, rendering the decision of the 
court in the Rahrer case (140 U. S., 561-564): 

By the adoption of the Constitution the ability of the several States to act upon 
the matter solely in accordance with their own will was extinguished and the legis- 
lative will of the General Government substituted. No affirmative guaranty was 
thereby given to any State of the right to demand as between it and the others what 
it could not have obtained before, while the object was undoubtedly sought to be 
attained of preventing commercial regulations partial in their character or contrary 
to the common interests. And the magnificent growth and prosperity of the country 
attest the success which has attended the accomplishment of that object. But this 
furnishes no support to the position that Congress could not, in the exercise of the 
discretion reposed in it, concluding that the common interests did not require entire 
freedom in the traffic in ardent spirits, enact the law in question. In so doing Con- 
gress has not attempted to delegate the power to regulate commerce, or to exercise 
any power reserved to the States, or to grant a power not possessed by the States, or 
to adopt State laws. It has taken its own course and made its own regulation, apply- 
ing to these subjects of interstate commerce one common rule, whose uniformity is 
not affected by variations in State laws in dealing with such property. 

The principle upon which local-option laws, so-called, have been sustained is that 
while the legislature can jiot delegate its power to make a law it can make a lajw 
which leaves it to municipalities or the people to determine some fact or state of 
things upon which the action of the law may depend; but we do not rest the validity 
of the act of Congress on this analogy. The powder over interstate commerce is too 
vital to the integrity of the nation to be qualified by any refinement of reasoning. 
The power to regulate is solely in the General Government, and it is an essential 
part of that regulation to prescribe the regular means for accomplishing the intro- 
duction and incorporation of articles into and with the mass of property in the 
country or State. ( 12 Wheat. , 448. ) 

No reason is perceived why, if Congress chooses to provide that certain designated 
subjects of interstate commerce shall be governed by a rule which divests them of 
that character at an earlier period of time than would otherwise be the case, it is not 
within its competency to do so. 

The differences of opinion which have existed in this tribunal in many leading 
cases upon this subject have arisen, not from a denial of the power of Congress, when 
exercised, but upon the question whether the inaction of Congress was in itself equiva- 
lent to the affirmative interposition of a bar to the operation of an undisputed power 
possessed by the States. 

We recall no decision giving color to the idea that when Congress acted its action 
would be less potent than when it kept silent. 

The framers of the Constitution never intended that the legislative power of the 
nation shall find itself incapable of disposing of a subject-matter specifically com- 
mitted to its charge. 

* * * * . * * * 

Congress did not use terms of permission to the State to act, but simply removed 
an impediment to the enforcement of the State laws in respect to imported packages 
in their original condition, created by the absence of a specific utterance on its part. 
It imparted no power to the State not then possessed, but allowed imported property 
to fall at once upon arrival within the local jurisdiction. 

The committee will recognize that this is the decision of the court 
upholding the validity of the Wilson Act, which the Hepburn bill, 
now under consideration, is designed to amend. 

Next it is contended that in a subsequent decision the United States 
Supreme Court, in the case of Vance v. Vandercook, held that the 
right of a citizen to import liquor from another State or from foreign 
countries for his own personal use was a right that could not be inter- 
fered with by State legislation. We think an examination of this case, 
together with previous pronouncements of the court, particularly in 



12 HEPBURN BILL. 

the Mugler v, Kansas case, in 1887, will show that no such unquali- 
fied and sweeping declaration was made concerning such importation 
should Congress act so as to remove the present obstacles to the 
enforcement of such legislation on the subject. However, this con- 
tention and observation in regai-d to it are entirely foreign to the 
subject-matter now before the committee. If such importetion for 

Sersonal use is a constitutional right which can not be impaired by 
tate legislation, then we contend that the passage of the Hepburn 
bill can not render such an act unlawful or render valid any such 
enactment by the States. 

All that the Hepburn bill will do and all we urge its enactment for 
is simply to give full scope to the legitimate exercise of the police 
powers of the State in dealing with this question. It will not make 
an unconstitutional law valid; it will not set up one policy of the State 
above another; it will simply give the State jurisdiction over liquors 
shipped within its own borders before as well as after deliver3^ If the 
opposition to this measure fear direful consequences to their business 
because of its enactment, they must realize that if it should be passed 
they have every opportunity to appeal to the good judgment and com- 
mon sense of the people of the various States, through their State 
legislatures, for the enactment of legislation which they desire, or for 
the repeal of legislation to which they are opposed, or for the defeat 
of proposed legislation which they may deenj inimical to the interests 
of their trade. 

But I submit to the committee that the friends of this measure are 
entirely willing thdt this course should be pursued by both the friends 
and opponents of the liquor traffic. We simply ask, as Chief Justice 
Fuller said in his opinion in the Rahrer case, that Congress shall enact 
a law which will remove "an impediment to the enforcement of the 
State laws in respect to imported packages in their original condition 
created by the absence of a specific utterance on its part." 

It is further claimed that, while Congress has the power to regulate, 
it has not the power to prohibit interstate commerce. 

I am satisfied that that will be relied upon very largely by the opposi- 
tion, so far as constitutional grounds are concerned; but it seems to me 
that if the Chief Justice's statement in the Rahrer case which was* just 
quoted was a sound one the answer to this objection has already been 
given, and if the decision is not the correct one the Wilson law itself 
would not have been constitutional, because Congress would then be 
held to have legislated for the States, which confessedly it could not 
do. From the ver}'^ foundation of the Government down the right to 
sell an imported article was held to be an integral part of intersSite or 
foreign commerce; and yet by the exercise of Congressional power, 
specifically upheld in the Leisy v. Hardin case, the right was taken away 
from the importer of intoxicating liquors to sell the same after tie 
passage of the Wilson law, and as construed in Rhodes v, Iowa, here- 
tofore referred to. 

There is a wide divergence of opinion as to whether Congress can 
simply regulate or prohibit insterstate commerce, or, more accurately 
speaking, as to whether the term "regulate" includes the power to 
prohibit. But we rest on the assertion of the Chief Justice concern- 
ing the eflfect of the legislation proposed, as heretofore quoted in the 
Rahrer case, as well as the very direct statements on this specific point 
in the lottery cases, decided February 23, 1903 (188 U. S., 358-362), 



HEPBURN BILL. 13 

and part of which opinion I also append as Exhibit C. It seems to 
me that one of the strongest reasons in support of the constitutionality 
of the proposed measure and against the statement advanced that 
Congress can not prohibit interstate commerce by passing a law which 
would be prohibitive in its results is found in the fact that Congress 
has already done it in the case of the transportation of nitroglycerin 
and other similar explosive substances, the proviso as to which in the 
interstate-commerce law reads: 

Any State, Territory, district, city, or town within the United States should not be 
prevented by the language used from regulating or from prohibiting the traflSc in the 
transportation of those substances between persons or places lying or being within 
their respective territorial limits, or from prohibiting an introduction thereof into 
such limits for sale, use, or consumption therein. 

In view of the manifold and admitted evils of the liquor traflSc and 
the harmful results that everywhere follow from the sale or use of 
intoxicating liquors, of which Federal, State, and district courts have 
all taken cognizance, as shown by the following extracts from court 
decisions, we ask for the largest measures of redress from the condi- 
tions which have been named, and which is only possible either by the 
legislation proposed, allowing said jurisdiction to attach immediately 
upon the arrival of liquors within the State, or by a reclassification of 
the subjects of interstate commerce. 

Great solicitude is expressed by the brewers and distillers for the 
supposed infraction of the Constitution which this law will entail. 
Permit me to say that nothing would prevent them from joining with 
the petitioners for this legislation for the passage of the Hepburn bill 
if the}'^ were assured that it would fail before the courts. If their 
solicitude for the Constitution and the laws were to be directed along 
practical lines, we could suggest that a close observance of and con- 
idrmity to existing regulations and prohibitions by the members of 
that trade over the entire country would contribute to that end. The 
reason the Wilson law was demanded and passed was because of their 
unwillingness to obey the law and live in conformity with regulations, 
etc., established by the people of the States; and the necessity for the 
legislation proposed has likewise come about because of their inge- 
nuity in seeking and their willingness to employ methods for evadmg 
and violating the law. 

In conclusion, we ask for this legislation because of the need for it 
throughout the States, because of the schemes and artifices devised 
for breaking the law, and we feel ourselves entitled to the proposed 
relief. 

During the past several years the liquor interests have clamored for 
certain legislation affecting their internal trade, legislation to which 
we could have offered serious opposition and .incited a tremendous pro- 
test over the entire country. We abstained therefrom as temperance 
people, not because arguments could not have been advanced from our 
standpoint against the reduction of the brewers' tax and certain finan- 
cial concessions urged and secured by the distillers, but because we 
preferred to keep our hands oflf those matters affecting the purely 
commercial and internal interests of the trade, so that we could be free 
to ask for such fair and reasonable and legitimate legislation as we 
needed, and to which we believe we are entitled, and as partially repre- 
sented in the bill now before your committee. 

I will incorporate, with the permission of the committee, extracts 



14 HEPBUKN BILL. 

from the decisions of the Supreme Court which are on this line, and 
will not take the time to read them, showing the direful consequences 
that are flowing and must of necessity flow from the traflic in intoxi- 
cating liquors as carried on over the country. 

I want to give, as previously stated, a few extracts showing that 
there seems to be no disposition on the part of the States in the past 
and no disposition on the part of many States at least — practically all 
the States — in the time to come to do what our German-American 
brothers who were present at the hearing on the 20th of January sug- 

f jested — interfere with the so-called right of importation of intoxicating 
iquors for personal and family use. 

I ought to say that the American Antisaloon League, national and 
interstate, which I oflScially represent, is not - properly considered a 
separate organization outside of the churches and the temperance organ- 
izations. It is a federation or league of all the churches and temper- 
ance societies cooperating in absolutely non or omni partisan and inter- 
denominational temperance effort. So when the league speaks upon 
this bill it speaks for the federated churches and temperance societies 
all over the country, but a number of such organizations and churches 
have found it possible to be directly represented before your commit- 
tee in support of the Hepburn-Dolliver bill. 

I thanlk you for this privilege and for your courteous attention, 
taking the liberty you have given of appending various exhibits in this 
connection. 

Mr. GiLLETT. Would you consent to an amendment that it should 
not apply to liquors transported into a State for personal use and con- 
sumption ? 

Mr. DiNwiDDiE. Is there any necessity for doing that? 

Mr. GiLLETT. You say the States favor that and 3^ou have no objec- 
tion to it? 

Mr. DiNwiDDiE. Yes, sir; for the reason that the principle under- 
lying this bill is that the States should have control of this business 
within their own borders. I certainly should not favor any proviso 
being placed in the bill which would interfere with the principle of 
the States having permission to handle this question within their 
borders as they see fit. Our contention is the States should be so 
situated that they can adopt their own policy on this question within 
their own borders in their own way and under the exercise of their 
police powers without outside interference. If a provision of the kind 
you name is inserted, Congress then attempts to determine a set policy 
for all the States. 



Exhibit A. 

House Report No. 3377^ Fifty-eighth Congress^ second session^ hy 
Mr. Clayton^ of Alabama^ to accompany iL E, 15331 {the Hepburn 
hill). 

The Committee on the Judiciary, to whom was referred the bill 
(H. R. 15331) to amend an act to limit the effect of the regulations of 
commerce between the several States and with foreign countries in 
certain cases, approved August 8, 1890, having considered said bill, 
submit the following report: 

Nearly all of the States have passed laws, as police regulations, dif - 



HEPBURN BILL. 15 

fering to some extent in their provisions, for the prohibition, reg- 
ulation, or control of intoxicating liquors within their respective 
boundaries. 

In the case of Leisy v. Hariin (135 U. S., 100) the Supreme Court 
held that any citizen of a State had the right under the Constitution 
of the United States to import any intoxicating liquors into another 
State, and that in the absence of Congressional permission the State 
into which such liquors were imported had no power, in the exercise 
of its authorit}^ of police regulations, to enact laws to prohibit or regu- 
late the sale of such liquors while they remained in the original 
packages. 

The effect of this decision of the Supreme Court was to deny to the 
States all power to control or prohibit the sale of intoxicating liquors 
transported from one State into another while they remained in the 
original packages. 

To remove the eflfect of this decision, and to authorize the several 
States, in the exercise of their police powers, to prohibit or control 
the sale of intoxicating liquors, the act of August 8, 1890, was passed. 
That act provided — 

that all fermented, distilled, or other intoxicating liquors or liquids transported into 
any State or Territory or remaining therein for use, consumption, sale, or storage therein, 
shall upon arrival in such State or Territory be subject to the operation and effect of 
the laws of such State or Territory, enacted in the exercise of its police powers, to 
the same extent and in the same manner as though such liquids or liquors had been 
produced in such State or Territory, and shall not be exempt therefrom by reason of 
being introduced therein in original packages or otherwise. 

In the case In re Rahrer (140 U. S., 546) the Supreme Court of the 
United States held that this act was constitutional and valid and con- 
ferred upon the States the powers enumerated therein. But in the 
case of Rhodes v, Iowa (170 U. S., 415) a question arising under this 
act again came before the Supreme Court, and in defining the scope 
and meaning of the act the court held that under its provisions 
liquors transported from one State into another remained under the 
protection of the interstate-commerce laws until they were delivered 
to the consignee, and that the State law was inoperative to reach them 
until they were delivered by the common carrier to the person to 
whom they were consigned. 

The effect of this decision was practically to nullify the act of 1890 
so far as the transportation and delivery of intoxicating liquors within 
the State was concerned. Under the law, as thus construed, dealers 
in intoxicating liquors located in some of the States sent out their 
soliciting agents and established agencies in other States, who traveled 
over and canvassed the country and solicited sales and took orders for 
intoxicating liquors to be shipped in by the principal, consigned to 
the subscribers — sometimes to be sent to them direct, and in other 
cases to be sent to them in care of the soliciting agent. 

By this method regular business of dealing in intoxicating liquors 
b3" the foreign dealer has been kept up in many of the States with 
impunity. Under this system the States are entirely powerless either 
to prohibit such sales or to exercise any control or regulation over 
them. They can not even impose a license or any restrictions what- 
ever on the business carried on in this manner. 

It is the purpose of this bill to correct this evil and to subject intoxi- 
cating liquors miported from one State into another to the jurisdiction 



16* HEPBURN BILL. 

of the laws of the State into which they are imported on the arrival 
of such liquors within the boundaries of such State. 

Your committee therefore reports the bill back to the House with 
the following substitute amendment, and recommends that the bill as 
amended do pass: 

That all fermented, distilled, or other intoxicating liquors or liquids transported 
into any State or Territory or remaining therein for use, consumption, sale, or storage 
therein, shall, upon arrival within the boundary of such State or Territory, before and 
aft6r delivery, be subject to the operation and effect of the laws of such State or Terri- 
tory enacted' in the exercise of its polixie powers to the same extent and in the same 
manner as though such liquids or liquors had been produced in such State or Territory, 
and shall not be exempt therefrom by reason of being introduced therein in original 
packages or otherwise. 

Sec. 2. That all corporations and persons engaged in interstate commerce shall, as 
to any shipment or transportation of fermented, distilled, or other intoxicating liquors 
or liquids, be subject to all laws and police regulations with reference to such liquors 
or liquids, or the shipment or the transportation thereof, of the State in which the 
place of destination is situated, and shall not be exempt therefrom by reason of such 
liquors or liquids being introduced therein in original packages or otherwise. 

Amend the title so as to read: ''A bill to limit the eflfect of the regu- 
lations of commerce between the several States and with foreign 
countries in certain cases." 



Exhibit B. 

State laws not against importation for personal or family use. 

Here is what the superintendents of our State league in a number 
of the States say: 

Oregon. — Our State does not seek to prevent the importation of intoxicating 
liquors for personal or family use. 

Rhode Island. — Rhode Island has no law to prevent the importation of liquors for 
personal or family use; nothing that can be so construed. 

Wiscomin. — There are no laws in Wisconsin preventing the importation of liquors 
for personal or family use. There are absolutely no statutes in regard to this matter 
in the State. 

Here is West Virginia: 

Our State law does not seek to prevent the importation for personal or family use 
of beer, wine, and other intoxicating liquors. On the contrary, at my request the 
taxation and finance committee of our house, at the last session of our legislature, 

E laced in the C. 0. D. bill, which they were then considering, an exception of **the 
ona fide consignee" thereof who has in good faith ordered the same for his personal 
use. 

Maine. — Our State has no law to prevent the importation for personal or family use 
of beer, wine, and other intoxicating liquors, and we would object to such a law if 
proposed. 

Connecticut. — We do not attempt to invade private or family rights and have no 
law for that purpose on our statute books. 

Tennessee. — No; our State is not seeking by law to prevent the importation, for per- 
sonal or family use, of beer, wine, and other intoxicating liquors. 

Indiana. — We are informed by Colonel Ritter that we have no law in our State 
that prevents the importation, for personal or family use, of beer, wine, or other 
intoxicating liquors. 

Illinois. — We do not seek to interfere with personal or family use of beer, wine, or 
other liquor or the obtaining of it for that purpose. 

Kansas. — In answer to your question on the attitude of Kansas legislation toward 
the personal and family use of liquor, you may be assured that we have no legisla- 
tion whose aim is to curtail the privilege of individuals who desire to have liquor 
shipped to themselves for their own use. 



HEPBUEN BILL. 17 

Washington. — We have no law in the State of Washington p^-ohibiting the importa- 
tion, for personal or family use, of beer, wine, or other intoxicating liquors. 

Calif omia. — Our attorney authorizes me to say that California does not seek by law 
to prevent the importation, for personal or family use, of beer, wine, and other intoxi- 
cating liquors. 

My own State of Ohio, in all its local option and regulatory legisla- 
tion, expressly exempts the personal and family use in the clause relating 
to -'selling, furnishing, or giving away"— we have come to know the 
traffic well enough to provide against the makeshift of "giving" 
liquors, only further providing against a man's residence becoming a 
"place of common resort" for drinking purposes, etc. 



Exhibit C. 

Excefrpts from Suprmne Cmirt decision in lottery cases {188 U, S.^ 368- 
36^2)^ decided Feh'uary 23^ 1903^ opinion heing read hy Mr, Justice 
Harlan. 

That regulation may sometimes take the form or have the eflfect of 
prohibition is also illustrated in the case of in re Rahrer (140 U, S., 
545). In Mugler ^. Kansas (123 U. S., 623) it was adjudged that State 
legislation prohibiting the manufacture of spirituous, malt, vinous, 
fermented, or other intoxicating liquors within the limits of the State, 
to be there sold or bartered for general use as a beverage, does not 
necessarily infringe any right, privilege, or immunity secured by the 
Constitution of the United States or by the amendments thereto. 
Subsequently, in liowman v. Chicago, etc. , Railway Company (125 U. S. , 
465), this court held that ardent spirits, distilled liquors, ale, and beer 
were subjects of exchange, barter, and traffic, and were so recognized 
by the usages of the commercial world, as well as by the laws of Con- 
gress and the decisions of the courts. In Leisy v. Hardin (135 U. S., 
100) the court again held that spirituous liquors were recognized arti- 
cles of commerce, and declared a statute of Iowa prohibiting the sale 
within its limits of any intoxicating liquors, except for pharmaceutical, 
medicinal, chemical, or sacramental purposes, under a State license, to 
be repugnant to the commerce clause of the Constitution, if applied to 
the sale, within the State, by the importer, in the original, unbroken 

gackages, of such liquors manufactured in and brought from another 
tate. And in determining that case the court said that — 

whether a State could prohibit the sale within its limits, in original, unbroken pack- 
ages, of ardent spirits, distilled liquors, ale, and beer imported from another State, 
this (purt said that they were recognized by the laws of Congress as well as by the 
commercial world "as subjects of exchange, barter, and traflfic," and that whatever 
our individual views may be as to the deleterious or dangerous qualities of particular 
articles, we can not hold that any articles which Congress recognized as subjects of 
commerce are not such. (Leisy v. Hardin, 135 U. S., 100, 110, 125.) 

Then followed the passage by Congress of the act of August 8, 1890 
(26 Stat., 313, c. 728), providing ^'that all fermented, distilled, or 
other intoxicating liquors or liquids transported into any State or Ter- 
ritory, or remaining therein for use, consumption, sale, or storage 
therein, shall up>on arrival in such State or Territory be subject to the 
operation and effect of the laws of such State or Territory enacted in 
the exercise of its police powers, to the same extent and in the same 
H B— 04 2 



18 HEPBURN BILL. 

manner as though such liquids or liquors had been produced in such 
State or Territory, and shall not be exempt therefrom by reason of 
being introduced therein in original packages or otherwise." That 
act was sustained in the Rahrer case as a valid exercise of the power 
of Congress to regulate commerce among the States. 

In Rhodes v. Iowa (170 U.S., 412, 426) that statute— all of its provi- 
sions being regarded — was held as not causing the power of the State 
to attach to an interstate-commerce shipment of intoxicating liquors 
"whilst the merchandise was in transit under such shipment and until 
its arrival at the point of destination and delivery there to the con- 
signee." 

Thus under its power to regulate interstate commerce, as involved 
in the transportation, in original packages, of ardent spirits from one 
State to another. Congress, by the necessary effect of the act of 1890, 
made it impossible to transport such packages to places within a pro- 
hibitory State and there dispose of their contents by sale; although it 
had been previously held that ardent spirits were recognized articles 
of commerce, and, until Congress otherwise provided, could be imported 
into a State and sold in the original packages despite the will of the 
State. If at the time of the passage of the act of 1890 all the States 
had enacted liquor laws prohibiting the sale of intoxicating liquors 
within their respective limits, then the act would have had the neces- 
sary effect to exclude ardent spirits altogether from commerce among 
the States, for no one would snip, for purposes of sale, packages con- 
taining such spirits to points within any State that forbade their sale 
at any time or place, even in unbroken packages, and, in addition, pro- 
videa for the seizure and forfeiture of such packages. So that we 
have in the Rahrer case a recognition of the principle that the power 
of Congress to regulate interstate commerce may sometimes be exerted 
with the effect of excluding particular articles from such commerce. 



Exhibit D. 

Various supreme and other high court statements conceiving the traffic 
in intoxicating liquors. 

" By the general concurrence of opinion of every civilized and Chris- 
tian community there are few sources of crime and miserv to society- 
equal to the dramshop, where intoxicating liquors in small quantities 
to be drunk at the time are sold indiscriminately to the parties apply- 
ing. The statistics of every State show a greater amount of crime 
and misery attributable to the use of ardent spirits obtained at these 
retail liquor stores than to any other source. 

" The right to sell intoxicating liquors, so far as such a right exists, 
is not one of the rights growing out of citizenship of the United States. 
There is no inherent right in a citizen to sell intoxicating liquors by- 
retail; it is not a privilege of a citizen of a State, or of a citizen of the 
United States." (Crowley v. Christensen, 137 U. S., 86.) 

"Nor can we ignore the fact, established by statistics accessible to 
everyone, that the disorder, pauperism, and crime prevalent in the 
country are in large measure directly traceable to this evil. Nor can 
it be said that government interferes with or impairs anyone's con- 



HEPBUEN BILL. 19 

stitutional right of liberty or property when it determines that the 
manufacture and sale of intoxicating drinks for general or individual 
use as a beverage are or may become hurtful to society and to every 
member of it, and is therefore a business in which no one may lawfully 
engage. (Mugler v. Kansas, 123 U. S. 623.) 

'^It is not necessary for the sake of justifying the State legislation 
now under consideration to array the appalling statistics of misery, 
pauperism, and crime which have their origin in the use or abuse of 
ardent spirits. The police power, which is exclusively in the States, 
is alone competent to the correction of these great evils, and all meas- 
ures of restraint or prohibition necessary to effect the purpose are 
within the scope of that authority. There is no conflict of power or 
of legislation as between the States and the United States. Each is act- 
ing within its sphere and for the public good, and if a loss of revenue 
should accrue to the United States from a diminished consumption of 
ardent spirits she will be the gainer a thousandfold in the health, 
wealth, and happiness of the people. 

"The evils attending the vice of intemperance in the use of spirit- 
uous liquors are so great that a natural reluctance is felt in appearing 
to interfere within constitutional grounds with any law whose avowed 
purpose is to restrict and prevent the mischief." 



Exhibit E. 

Certified copy of resolutioiis of the Illinois general assembly in favor 

of Hepburn hill. 

FOETY-THIRD GENERAL ASSEMBLY. HoUSE JOURNAL. No. 25. THURSDAY, FEBRUARY 

26, 1903. 

Thursday, February 26, 1903. 
At the hour of 10 o'clock a. m.. 
The house met pursuant to adjournment. 
The speaker in the chair. 

Mr. Schlagenhauf , from the committee on federal relations, to which 
was referred House resolution No. 54, to wit: 

Whereas there has passed the House of Representatives of the United States and 
is now pending in the Senate of the United States a bill which provides that: 

** Section 1. All fermented, distilled, or other intoxicating liquors or liquids trans- 
ported into any State or Territory, or remaining therein for use, consumption, sale, 
or storage therein, shall upon arrival within the boundary of such State or Territory 
before and after delivery be subjected to the operation and effect of the laws of 
such State or Territory,' enacted in the exercise of its police powers, to the same 
extent and in the same manner as though such liquids or liquors had been produced 
in such State or Territory, and shall not be exempt therefrom by reason of being 
introduced therein in original packages or otherwise. 

"Sec. 2. That all corporations and persons engaged in interstate commerce shall, 
as to any shipment "or transportation of fermented, distilled, or other intoxicating 
liquors or liquids, be subject to all laws and police regulations with reference to such 
liquors or li(^uids or the shipment or transportation thereof of the State in which the 
place of destination is situated, and shall not be exempt therefrom by reason of such 
liquors or liquids being introduced therein in original packages or otherwise." 

Therefore he it resolved by the house of representatives of the State of Illinois^ That the 
members of the United States Senate from the State of Illinois, the Honorable Shelby 



20 HEPBURN BILL. 

M. Cullom and the Honorable William E. Mason, be requested to use their utmost 
efforts for the passage of said bill. 

And be it further resolved, That the clerk of this house be, and is hereby, directed 
to transmit without delay to the Honorable Shelby M. Cullom and the Honorable 
William E. Mason copies of this resolution. 

Reported the same back with the recommendation that it be adopted. 
The report of the committee was concurred in and the resolution 
was adopted. 

At the hour of 11.55 o'clock a. m., 

Mr. Shanahan moved that this house do now adjourn. 

The motion prevailed, 

And the house stood adjourned. 

United States of America, State of Illinois, ss: 

Office of the Secretary of State. 

I, James A. Rose, secretary of State of the State of Illinois, do hereby 
certify that the foregoing is a true copy of the journal of the house 
of representatives of the fortj^-third general assembly of the State 
of Illinois, relating to the adoption of a house resolution relating to 
intoxicating liquors, the original of which is now on file in my office. 

In witness whereof, I hereto set my hand and affix the great seal of 
State, at the city of Springfield, this 27th day of February, A. D. 1904. 

[seal.] James A. Rose, 

Secretary of State. 



Exhibit F. 

Resolutions of the Iowa general asseinhly {190 Jf) in favor of the Ilepburn- 

Dolliver oill. 

Whereas the Hepburn-Dolliver bill (H. R. 4072, S. 1390) which pro- 
vides for the police regulation of the liquor traffic in each State by 
home rule is now pending in the Congress of the United States; and 

Whereas the said bill, in its scope, provides for the legitimate exer- 
cise of the police power of the States in dealing with the liquor traffic, 
and does not make an unconstitutional law valid, or set up one policy 
of the State above another, or does not invade the so-called personal 
liberty of the people, but gives to each State jurisdiction over liquor 
shipped within its own borders, before as well as after delivery, and 
is tne fulfillment of the Constitution of the United States, guarantee- 
ing to each State the right of a republican form of government and 
home rule in commercial affairs; and 

Whereas Iowa is, at the present time, deprived of her constitutional 
right to self-government in such commercial affairs: Therefore be it 

Hesol'Ved hy the senate of the general assemoly of lowa^ the house con- 
mirring^ That it requests the Iowa delegates in the Senate and House 
of Representatives of Congress, now in session, to use all honorable 
means to secure the consideration and early passage of this bill. 



hepburn bill. 21 

Exhibit G. 

Statement of permanent committee on temperance of the General Synod 
of tlie Evangelical Lutheran Church in the United States. 

Office of the Secretary, 

Frederick, Md,, March 3, 190 4^. 
To the Judiciary Co^nmittee, House of Repre8entatiA)e8^ Washington, 

Gentlemen: I have pleasure in speaking for the General Synod of 
the Evangelical Lutheran Church in the United States of America. 
Thii? is the oldest general Lutheran body in this country. It is com- 
posed of 25 district synods, ranging from New York and New Jersey 
on the east to California on the west. There is a considerable German 
element in most, if not all, of our synods and several, like Wartburg 
and German Nebraska, are practically exclusively so, from which it 
will be seen that the attempt to identify all German- Americans with 
the opposition to this measure must fail. The General Synod has a 
communicant membership of over 209,000. Besides the communicant 
membership of the church, its Sunday school enrollment is about 
220,000, many of whom are not included in the church membership 
just mentioned. It is safe to assume, therefore, that it represents a 
constituency of between three hundred and three hundred and fifty 
thousand. Nearly all the district synods have by resolution placed 
themselves on record as favoring the passage of what is known as the 
Hepburn-Dolliver bill, now before your committee, but the General 
Synod itself is on record by unanimous vote at its forty-first session, 
held in Baltimore, June 3 to 11, 1903, as favoring the passage of this 
bill by the adoption of the following resolution, viz: 

Resolved J That we earnestly favor the enactment of the so-called Hepburn bill 
giving the States control of liquors shipped into the States, both before and after 
delivery, and respectfully urge the Congress to enact it into law at the next session. 

The permanent committee on temperance, which is the regularly 
constituted agency to represent the church on this question, and of 
which 1 am secretary, hereby presents this action of the above body 
to your committee and urges prompt and favorable consideration of 
the measure to the end that it may be enacted into law during this 
session of Congress. 

We do not attempt to argue the legal phases of the question, but it 
is believed that a review of the decisions of the Supreme Court in the 
Iowa transportation cases and in subsequent decisions since the passage 
of, the Wilson law, which this is designed to amend, warrant the belief 
in the constitutionulity of the measure. 

With great respect, I have the honor to remain, yours, very respect- 
fully, 

Chas. F. Steck, 
Secretary Permanent Committee on Temperance, 

Evangelical Lutheran Church in Zlnited States, 



22 HEPBUBK BILL. 

Exhibit H. 

Showing constitution^ hy-laws^ methods^ etc.^ of the American Anti- 
Saloon Lea^fue and affiliated State leagues. 

CONSTITUTION AND BY-LAWS. 

Article I. — Name, 

The name of this organization is the American Anti-Saloon League. 

Article II. — PnTicipal office. 

The principal oflSce of the league shall be at Washington, D. C. 

Article H1.~ Object. 

The object of this league is the suppression of the saloon. To this 
end we invite the alliance of all who are in harmony with this object, 
and the league pledges itself to avoid affiliation with any political party 
as such and to maintain an attitude of neutrality upon questions of 
public policy not directly and immediately concerned witn the traffic 
in strong drink. 

Article IV . — Constitusn cy. 

All organizations pledging cooperation shall be members of this 
league and shall be entitled to representation in the league and in its 
national conventions, as hereinafter provided. 

Article V. — Officer's. 

The officers shall be a president, seven vice-presidents, a general 
superintendent, a legislative superintendent, a recording secretary, a 
corresponding secretary, and a treasurer. Eight other persons in 
addition to the above officers shall constitute the executive committee 
of the league. The officers and additional members of the executive 
committee shall be elected annually by the national convention. 
Vacancies in the offices of the national league occurring between 
national conventions shall be filled by the executive committee. 

Article VI. — Board of direction. 

There shall be a board of direction consisting of one representative 
from each of the organizations having membership in the league. 
Annual conventions shall be held at such times and places as this 
board of direction shall determine, and the members of the board shall 
be the medium of communication between the national league and the 
bodies thus represented. 

Article VII. — Board of trustees. 

There shall be a board of trustees of the league, composed of two 
representatives from each State league, one of wnom shall be the State 
superintendent and the other elected by the State committee or State 
board of trustees. 



HEPBURN BILL. 23 

Article VIII. — Headquarters committee. 

There shall be a national headquarters committee consisting of three 
persons chosen annually b}'^ the national board of trustees. 

Article IX. — Representation in annual conventions. 

Section 1. In annual conventions representation from recognized 
and affiliated bodies shall be as follows: Ten delegates from each 
national body and five delegates from each State organization holding 
stated conventions, five delegates from each State antisaloon league, 
and two delegates from every other cooperating organization holding 
annual conventions. 

Sec. 2. The members of the executive committee, board of direc- 
tion, board of trustees, and headquarters committee shall be members 
ex officio of the convention. 

Sec. 3. For the purpose of representation religious denominations 
and international organizations shall be considered as national bodies 
and the District of Columbia and the Territories shall be considered 
as States. 

Article X. — Am^ndraents to the constitution. 

This constitution may be amended at any annual convention upon 
the written recommendation of the executive committee by a two- 
thirds vote of the delegates present: but in the absence of such rec- 
ommendation only on the vote of three-fourths of such delegates. 

BY-LAWS. 

1. The general superintendent shall give his entire time to the 
organization of the league and the superintendency of the work of 
the league throughout the United States. 

2. The legislative superintendent shall represent the league in 
the effort to secure improved temperance legislation by Congress with 
the counsel and advice of a legislative committee which shall be 
appointed by the executive committee. When not engaged in such 
work he shall give his time in work for the league under the direc- 
tion of the headquarters committee. 

3. The recording secretary shall keep a record of proceedings of 
the national convention and publish the same when authorized for 
sale and distribution. He shall keep a record of the proceedings of 
the executive committee and report a digest of the same annually to 
the national convention. 

4. The corresponding secretary shall issue notices of the meetings 
of the executive committee and send requests to State leagues and 
affiliated and other bodies for the appointment of delegates to the 
national conventions and such other work as properly pertains to the 
office. 

5. The board of trustees shall investigate the status of the financial 
condition of the various State leagues and make apportionment among 
the various State leagues of the amount required to meet the expenses 
of the national league, as reported by the headquarters committee. 

6. The headquarters committee shall direct and control the move- 
ment and expenditure of the general and legislative superintendents. 



24 HEPBUEN BILL. 

It shall prepare a budget of the probable expenses of the national 
league and report the same to the national board of trustees for their 
guidance. It shall report its work from time to time to the executive 
committee. 

7. When a vacancy occurs or is about to occur in the office of State 
superintendent of the league in any State, the State authorities of said 
league shall at once notify the general superintendent and by the con- 
current action of the general 'superintendent and State authorities a 
superintendent shall be chosen. 

8. The general superintendent, with the approval of the national 
headquarters committee, may go into any State or Territory where 
the Anti -Saloon League has not been organized, or has ceased to exist, 
or is not at work, or is not affiliated with the American Anti-Saloon 
League, and where no affiliated organization is doing work along anti- 
saloon league lines, and arrange for a representative meeting of the 
churches, temperance societies, and other organizations opposed to the 
saloon, the organization of a State antisaloon league, which shall be 
affiliated with the American Anti-Saloon League, the selection of a 
State board, and the appointment of a superintendent with the con- 
currence of that board. 

9. It shall also be the duty of the national headquarters committee 
to issue a commission to each State antisaloon league superintendent, 
who shall be recommended by the general superintendent and State 
authorities. 

10. Whenever written charges are filed by a responsible person or 
persons with the general superintendent against an}^ State superintend- 
ent for the following causes: Dishonesty, immoral or improper con- 
duct, or the administration of his office in such a manner as to com- 
promise the cause of temperance in his own State or prejudice the 
American Antisaloon League or impede its progress, the said gen- 
eral superintendent shall inform the State authorities, carefull}'^ inves- 
tigate the matter, and, if the case seems to demand it, shall arrange 
for a conference, as soon as possible, of three factors, viz, the State 
headquarters committee, the national headquarters committee, and 
the general superintendent, to try the case; and the concurrence, of 
two of these factors shall be required to reach a verdict. By the same 
concurrence of two penalties may be inflicted as follows: Admonition, 
or removal from the superintendency. A majority vote of the mem- 
bers present shall be sufficient to determine the attitude of either 
committee for the above purpose. 

11. Any of the factors above named may appeal at once from the 
decision of the other two to the regular meeting of the board of trus- 
tees for the American Antisaloon League, but a superintendent 
removed by the two shall continue removed pending the decision of 
the appeal. No member of the original committee of trial shall vote 
on the appeal. The decision of the board of trustees, by a majority 
vote of the members present at a regular meeting, shall be final. 

12. If the State authorities persist in retaining a superintendent after 
the board of trustees has approved a decision against him, such State 
league shall cease to be affilitated with the American Antisaloon 
League. 



HEPBURN BILL. 25 

STATE LEAGUE RULES. " 

The following rules should be observed by the State Anti-Saloon 
League and by auxiliary and subordinate leagues, in giving to voters 
information and recommendations respecting candidates for office and 
measures to be voted upon at approaching elections: 

First. Secure fullest possible list of temperance voters, with their 
addresses and party preferences. 

Second. By letters of inquiry addressed to candidates for office and 
to others, by personal interviews, and by all other proper methods, 
secure fullest possible information respecting the fitness of candidates 
and measures to receive the antisaloon support. 

Third. Be sure that all information given to the voters is unques- 
tionably correct. 

Fourth. The following methods may be adopted in conveying to the 
voters such information and recommendations as the league decides to 
give: 

(a) Personal interviews when this can be done. 

(b) Circulars addressed to known antisaloon voters, or to others, as 
may be deemed best. 

(c) Newspaper publication, when widest possible publicity is desired. 
Fifth. The information given to voters will consist of: 

(a) Recommendations of individual candidates, and measures, when, 
according to rule 6, this can be done. 

(b) A statement of facts respecting rival candidates without any 
recommendations. 

Sixth. Never endorse a mea&ure unless it is related to the cause of 
temperance reform. 

Never endorse a candidate unless, 

(a) There is a good and sufficient reason why the league should and 
does desire and seek his election; and also 

(b) A good and sufficient reason wh}'- the league should and does 
desire and seek the defeat of his principal competitor or competitors. 

Seventh. No partisan, denominational, personal, or other kindred 

{)ref erence should have any weight in determining the decisions of the 
eague, or the information given to the voters. All measures and all 
candidates should be considered and treated in every particular with 
absolute impartiality. 

Eighth. The State league, while assuming responsibility for all 
action taken, will be assisted by auxiliary and subordinate leagues in 
all this work of aiding voters to cast their ballots for temperance 
reform, as follows: 

[a] County leagues in matters pertaining to county measures and 
candidates for county offices. 

[b] City or town leagues in matters pertaining to their respective 
municipalities. 

[c] All leagues will act in harmon}^ with and seek to carry out the 
action of leagues to which they are auxiliary. 

[d] While the league claims no right or authority to dictate to indi- 
vidual voters as to their action at the polls, it does most earnestl}^ caxl 
their attention to the measureless and vital importance of all friends 
of saloon suppression standing and acting together as a unit against a 
combined and common enemy of every sacred human right and inter- 
est. All possible pains will be taken and an immense amount of labor 



26 



HEPBUBN BILL. 



performed to enable and aid them to do so. Those who ardently and 
truly desire the success of the antisaloon cause should and doubtless 
will sink all minor considerations and exert their influence and cast 
their ballots according to the information and recommendations of the 
Anti-Saloon League. 



Exhibit I. 

The Christian Civic League of Maine, 

Eastport^ Me.^ March 2^ 1901^, 
Hon. John J. Jenkins, Chairman^ 

And metriberfi of the Committee on the Judiciary^ 

Washington^ D. C: 

As associate secretary of the Christian Civic League of Maine, I 
respectfully submit the following statement, showing that the Hepburn- 
Dolliver bill should become a law, in justice to the moral and business 
interests of our State. 

I. The officials and citizens of Maine are honestly endeavoring to 
enforce their prohibitory law, in the belief that all the interests of the 
State are thereby conserved. Our prison population is nine less than 
a year ago. The commitments to our jails for intoxication were 829 less 
last year than the preceding year. The costs of criminal prosecution 
were about 14,000 less last year than the year before. The savings-bank 
deposits (which we associate with our no-license policy) were much 
increased, and the State received in 1903 over $500,000 in taxes from 
these banks. Below we give the figures from the report of the inspec- 
tors of prisons and jails for 1902 and 1903 to show the great benefits 
of the prohibitory law and by comparison what our officials are doing" 
in most counties for a more rigid enforcement of that law. 



County. 


Commitments for 
drunkenness. 


Commitments for 
selling liquor. 




1902. 


1903. 


1902. 


1903. 


Androscoggin 


666 

237 

1,067 

31 

23 

425 
69 
36 
70 

366 
1 


248 
208 
961 
21 
15 
117 
55 
21 
68 
401 
1 


68 
7 

93 
6 


57 


Aroostook 


28 


0"Tn berlftnd « 


68 


Franklin 


21 


Hancock 


10 


Kennebec 


14 


82 


Knox . 


7 


Lincoln 




5 


Oxford 


35 
9 
3 


37 


Penobscota 


48 


Piscataquis 


2 


Sagadahoc ^ 




Someraet 


39 
6 

54 
203 


13 

4 

62 

176 


5 
1 
4 
8 


11 


Waldo 


5 


Washington 


7 


York 


18 






Total 


3,193 


2,364 


234 


346 







oThe liquor law was unenforced last year in Cumberland and Penobscot counties. In the former 
there was a slight decrease in the commitments for drunkenness, but the arrests for drunkenness 
numbered 3,176 in 1903, the largest number ever recorded before being 2,776, in 1895. 

ft No jail in Sagadahoc County. 

II. Last winter I visited four saloons at Campobello, New Bruns- 
wick, owned and managed by Owen Batson, James L. Wilmot, and 
(two) Walter H. Foss. The principal trade of each of these saloons 
is to citizens of Maine, 8,000 of whom are residing within 3 miles of 



HEPBUBN BILL. 27 

them. Furthermore, Messrs. Wilmot and Foss have both been con- 
victed under our criminal laws, and the latter last vear defaulted his 
bonds for over $1,000 to escape going to jail. Ihese men are not 
only furnishing liquor to citizens of Maine, but one of them is man- 
aging a wholesale establishment and, from his Canadian retreat, is 
sendmg liquor circulars all over our State, and it is believed that 'he 
is shipping liquors to some purchasers in Maine who are retailing it 
as his agents in violation of the law. In January a man told my 
associate. Rev. C. E. Owen, that he counted over 100 C. O. D. pack- 
ages of liquor in the express office at Kingman, Me. Many of them 
bore fictitious names, and many of them were sold "to pay express 
charges " to any person who might call for them. In Oxford County 
and some other parts of the State sheriflfs have instructed their depu- 
ties to seize such packages, but that right is not acknowledged by the 
shippers, and a case from Rumford Falls has recently been carried 
from the supreme judicial court to the law court to decide that point. 
In all parts of Maine the interstate commerce law renders it difficult 
to seize liquors brought from without the State and intended for 
unlawful sale. Often an obliging station agent or other emploj'^ee 
permits the delivering of the liquors at night and in the morning the 
officers, who have been keeping faithful watch during business hours, 
lind that they have been deluded. 

III. The question may be raised whether individual rights may not 
suffer if the interstate-commerce law is revised so that imported liquors 
will be subject to the State law as soon as they pass the boundary into 
the State. In reply we may say that the prohibitory law permits, and 
ever since its enactment has permitted, the sale and purchase of liquors 
within the State for mechanical, manufacturing, and medicinal uses, 
and the purchase of liquors without the State as a beverage. Our pro- 
hibitory law permits one to buy, transport, store, and consume any kind 
of intoxicants, but provides a penalty for intoxication. Our law for- 
bids any person from engaging in the business of retailing intoxicants 
as a beverage within the State, and it requires that one reSiiling intox- 
icants within the State for mechanical, manufacturing, and medicinal 
purposes shall be chosen by the selectmen or the nmnicipal officers as 
a town liquor agent. Some persons in our State use intoxicants as a 
beverage, and this right is not questioned by our people or legislature 
and their customs are not interfered with by our officers. If, by mis- 
take, such liquors were seized in transit, on the supposition that they 
were intended for unlawful sale, the owner would easily recover his 

foods by satisfying the officials that the liquors were not intended by 
im for unlawful sale. 

Henry N. Pringle, 
On hehalfofthe Christian Civic League of Maine. 



Exhibit J. 

Resolutions adopted hy the Iowa Association of Southern, California 
in annvxil picni>c assemhled^ lOfiOO strong^ at Los Angeles^ Cal,^ 
February, m, 190^, 

Whereas Senator Dolliver and Congressman Hepburn, of Iowa, 
have introduced bills in the National Legislature, which provide for 



28 HEPBURN BILL. 



fi; 



iving the several States the authority to protect themselves from the 

light and curse of the poison drink traffic: 

Mesolved^ That as loyal lowans, 10,000 strong, in annual picnic 

assembled, we express our hearty approval of the legislation proposed 

by^ them, and extend to them our grateful thanks for their noble eflfort 

in 'defense of Christian civilization. 

Signed in behalf of the association. 



Pasadena, Cal., February ^5, 190 1^., 



O. T. Nichols, President, 
C. H. Parsons, Secretary. 



Exhibit K. 

Independent Order of Good Templars, 

Columbian Building, 
Washington^ D. C, March 8^ 190^. 
Judicially Committee^ House of Representatives^ 

Wa^hington^ D. C, 
Gentlemen: One hundred thousand Good Templars of this coun- 
try desire to go on record as favoring very intensely the enactment 
into law of the Hepburn-DoUiver bill, designed to remove certain inter- 
state commerce obstructions to satisfactory enforcement of the laws 
of the several States regulating or prohibiting the sale of intoxicating 
liquors, which bill 3^ou have now under consideration. 

These Good Templars believe in the strict enforcement of all laws, 
and especially those having to do with the liauor traffic. They believe 
that it is but reasonable that the Congress snould make it as easy as 
possible for the States to enforce their own liquor laws without inter- 
terence by the General Government. 

Good Templars believe the provisions of the Hepburn-Dolliver 
bill, to be just, expedient, practical, and constitutional. They believe 
that all opposition to the bill emanates from a class of people inter- 
ested directly or indirectly in the extension of the traffic m intoxi- 
cants, and that their selfish wishes should not weigh against the great 
predominating moral sentiment of the country asking for the enact- 
ment of the bill into law. 

For the Good Templars of the country, represented by 45 grand 
lodges, covering nearly ever}^ State and Territory of the Union, 1 
plead for favorable action upon the Hepburn-Dolliver bill. 
Respectfully submitted. 

A. E. Shoemaker, 

Grand Chief Templar. 



Exhibit L. 

LEstabJished 1871. Cable address, "Woodland" A. B. C. Code.] 

Crigler & Crigler, distillers Woodland (sour mash) whiskey. 

[We are not in any manner connected with the whiskey trust. Sole proprietors Woodland Registered 
Distillery, Seventh district, Kentucky.] 

Covington, Ky., November 5^ 1903. 
Eoqyress Agent. 

Dear Sir: The holiday season and the few weeks preceding offer 
an excellent opportunity tor the sale of Woodland whiskey. This year 



HEPBUBN BILL. . 29 

we are making a special effort to assist our representatives to secure 
orders by giving away free to all customers our holiday book novelty, 
which conteins a half pint of Col. R. L. Crigler's private stock whis- 
key, 20 years old. As per enclosed circular, this novelty will be placed 
in ever}'^ package of four quarts or more shipped before Jan. 1. 

We will also make this unprecedented oflfer: To any express agent 
who sends in orders between Nov. 10 and Jan. 1, amounting in all to 
100 gallons, we will give an extra bonus of $15.00, in addition to the 
regular commission of $50.00, alyo an elegant suit of all-wool clothes, 
made to order, valued at $30.00, making a total of $95.00 you will 
receive for sale of 100 gallons, a commission equalling 95 cents per 
gallon. The book novelty, which we offer as an extra inducement to 
customers, will be of gl-eat assistance in making sales. Your position 
as express agent puts you in touch with those who use good whiskey 
and send away from home for it, therefore, you should be better able, 
with a smaller amount of effort, to secure orders than anyone else. 
Knowing you to be reliable we will extend 3^ou credit and charge to 
your account any orders you may wish, or will ship anyone wnose 
account you may guarantee. 

We enclose circular of our Christmas club offer, whereby we ship 
five gallons of Woodland for the price of four, on condition that cash 
accompanies the order. Your commission on this shipment will be 
$2.00, and each one will credit you four gallons toward a 100 gallon 
sale. 

In order to save express charges with the first shipment of four quarts 
or more going to your town, upon receipt of the enclosed card we will 
send you for sample purposes, absolutey free, one full quart of 12-year- 
old Woodland. 

Orders are best secured by personal solicitation, but if you will give 
us the names of whiskey users in your locality (omitting merchants) 
we will solicit their holida}'^ order and send them circulars of the book 
novelty. Any osders received will be placed to your credit. 

Circulars descriptive of the book novelty and other stationery needed 
w^ill be mailed you promptly on request. 

Hoping to receive an early reply, and trusting you will take advan- 
tage of our liberal offer, we are. 

Very respectfully, Crigler & Crigler. 

SPECIAL HOLIDAY OFFER. 

$95.00 commissions paid on 100 gallons so^d as follows: 

Regular commission $50. 00 

Special commission 15. 00 

Suit clothes, valued at 30. 00 

Total of 95.00 



Get up a club order and secure 

4 QUARTS WOODLAND FREE. 

To anyone who will get up an order among their friends for four gallons (16 
quarts) and send us fifteen dollars ($15.00), cash with the order, we will give them free, 
besides the 16 quarts, four quarts extra, making a shipment of five gallons (20 quarts) 



30 HEPBUBN BILL. 

for the cost of four gallons, shipped by express, all charges prepaid, in one large box, 
free from marks to indicate contents. The box will include the assortment here 
illustrated. 

[Cut of articles named below.] 

For $15.00 cash with order. For $15.00 cash with order. 

HOLIDAY CLUB OFFER 

will be sent to anyone before Jan. 1 who sends the amount, $15.00 cash with the 
order, and consists as follows: 
15 full quarts 12-year-old Woodland whiskey. 
5 full quarts Old Private Stock, 20 years old. 
5 book novelties, each containing one-half pint Old Private Stock. 
5 whiskey glasses and 5 corkscrews. 
The club order complete contains five gallons of whiskey besides the five half pints 
Private Stock whiskey. 

Use order blank on other side and give names of those who will secure part of the 
shipment. 

This club offer, which expires January 1, will not be sent C. O. D., but pnljr to 
those who send cash with the order. This price is net; no discounts or deductions 
whatever from this price. 

Crigler & Crigler, Distillers, Covington^ Ky. 

[Reverse side.] 

Five gallons for the price of four. 



ORDER blank. 

Messrs. Crigler & Crigler, Distillers j Covington^ Ky.: 

Inclosed find $15.00 (fifteen dollars). Please ship by Express Co., 

all charges prepaid, the holiday club offer as illustrated, to consist of fifteen full 
quarts 12-year-old Woodland whiskey, five full quarts Old Private Stock, 20 years 
old, five book novelties, each containing one-half pint Old Private Stock, five whiskey 
glasses, and five corkscrews, to the following address: 

Name 

Express office 

County State 

P. O. address 

This shipment complete will eo forth by express, all charges paid, in one large 
box, free from marks of any kind to indicate contents. 
The shipment will be divided on arrival as follows: 



Name. Address. 



-quarts for. 



Five gallons for the price of four. 



FREE — OUR HOLIDAY NOVELTY — FREE. 

[Cut of novelty book.] 

With every case of Woodland shipped before January 1. 

This novelty book will be placed in every case of Woodland whiskey consisting 
of four quarts or more shipped before January 1. The novelty is in exact imitation 
of a real book, made of heavy cardboard, bound in cloth with title, etc., lettered in 
gold, and will deceive the most observing. Upon opening the book you find instead 
of dull reading matter a very active half pint of Colonel R. L. Crigler's old private 



HEPBURN BILL. 



31 



stock whiskej^, 20 years old, labeled in appropriate holiday style. This book and 
bottle of whiskey will itself make an elegant Christmas present and a great deal of 
sport may be had with it during the holidays. 

Price list of Woodland whiskey, 1^ years old, by express, all charges prepaid. 

Four full quarts $3.86 

Six full quarts 5. 75 

Eight full quarts 7.65 

Twelve full quarts 11.50 

Shipped C. O. D. where express companies will deliver that way. 
Three per cent off these prices for cash with order. 



SPECIAL OFFER. 



To any representative sending us orders between Nov. 10 and Jan. 1, amounting in 
all to 100 gallons, we will give 

Regular commission 50 cts. per gallon. 

Special holiday commission 15 ** ** " 

Elegant suit of clothes 30 " '' 



A total commission of 

Equivalent to f 95. 00 for 100 gallons. 



95 cts. per gallon. 



The suit of clothes is of all wool material and made to order by H. Eilerman & 
Sons, the largest merchant tailors in Covdngton, with whom we have a special yearly 
contract to supply us with the best they can make. They wjill send you measure- 
ment blanks with full instructions and as many samples as xiesired to select from. 
A perfect fit is guaranteed. We can refer to agents who have secured suits and they 
wnll gladly tell you of their high quality and fit. 

This is the most remarkable offer we have ever made to further the sale of Wood- 
land, but it is our desire to have representatives make all the money they can during 
that period of the year when every one will use more or less whiskey. As an 
extra inducement between Nov. 10 and Jan. 1 we will give each customer gratia 
with every shipment of four quarts or more our book novelty, which contains one 
half pint of Col. R. L. Crigler's Old Private Stock Whiskey, twenty vears old. 

Our regular commission is 50 cents per gallon, and the 15 cents additional and suit 
of clothes are only given on the following conditions: 

1. That orders for 100 gallons must be sent in between Nov. 10 and Jan. 1. 

2. This extra commission will only be paid to those whose orders amount to 100 
gallons during this time. On less quantities only the regular commission of 50 cents 
per gallon will be allowed, as well as premiums from list A, as heretofore. 

3. This offer holds good only to Jan. 1 and no longer. 

Crigler & Crigler, Distillers Woodland Whiskey, Covington, Kentucky. 

[Reverse side.] 

We desire to assist representatives in every manner possible, and if you will give 
us the names and addresses of those who use good whiskey in your locality, we will 
be pleased to write them, soliciting their order for the holidays and sending them 
circulars descriptive of our holidajr book novelty. Any orders received will be 
placed to your credit and full commission allowed you. 

Let us know what circulars, order blanks, literature, etc., you may need and same 
shall be sent at once. 

We want namies of private consumers only. Don't send names of merchants, firms, 
or corporations. 



Name. 


Town. 


State. 


County or st. ad- 
dress. 




















































1 





Additional blanks supplied. 



82 HEPBURN BILL. 

Exhibit M. 

Arguments for the Hepburn- Dollmer bill. 

J. C. Thoms, M. D., Seattle, Wash. 

First. When any portion of our State expresses by vote the desire 
to exclude liquors we ought not to be compelled to tolerate people of 
another State shipping liquors into such town or county. 

Second. The manufacturers of liquors in our own State are obliged 
to obey the expressed will of the people in such localities, and we 
should not give a greater privilege to people outside of the State 
engaged in tne liquor traffic. 

Third. The liquor men have money enough to make themselves per- 
niciously active against such a measure, while the vast majority making 
up the bone and sinew of our country — the farmer and tradesman — go 
quietly on about their everyday duties. It is these, who, through me, 
entreat you to urge the immediate passage of the bill. 



Exhibit N. 

Richmond, Ind., February ^9^ 190 j^. 
My Dear Brother Dinwiddie: As an American-German, serving 
for more than ten years a German congregation of more than 700 com- 
municant members, and before my coming to Richmond being travel- 
ing secretary in the Nebraska and German-Nebraska synods for over 
seven years, I am certainly allowed to send you a word of protest 
when some of us Germans are constantly included with the whisky 
and beer drinking, as well as Sabbath-breaking Germans, who are 
indeed a disgrace to our nation. 1 am speaking for a large portion in 
the Wartburg synod, for the German-Nebra.ska S3mod, as well as for 
man}^ of the Germans in our English synods, like the four congrega- 
tions in Olive Branch synod, that we find thousands of them who are 
not only against this slanderous representation of our people, but are 

{)ositively for temperance. May God speed the day when we shall no 
onger have to suffer from such false representation. 1 hope the 
Hepburn-DoUiver bill will be successful. 
Very respectfully, 

Conrad Huber, 
Pastor St. PavVs Gennan Lutheran Churchy 

jRichmond. Ind. 



Exhibit O. 

[Telegram.] 

Coon Rapids, Iowa, March 3^ 190Ii,. 
Dr. E. C. Dinwiddie, 

3^ Bliss Building.^ Washington: 
Citizens' mass meeting. Coon Rapids, unanimously urge passag'e 
Hepburn-DoUiver bill. 

Stakesbury Lamson. 
Rev. T. B. Turner. 



HEPBUBN BILL. 33 



STATEMENT OF HON. SWAOAE SHEBLET, OF KENTTJCXT. 

Mr. Sherley. Mr. Chairman and gentlemen of the committee, 1 
want to be perfectly frank in saying that my attention to this bill and 
my original ©imposition to the bill grew out of the fact that I represent 
a district that is largely engaged in the manufacture and exportation of 
distilled spirits. Perhaps my Congressional district is the largest dis- 
trict in some respects in the country. Certainly the Louisville market 
is the chief market of the world in regard to whiskies. But I would be 
equally unfair to myself and equally unfair to this committee if 1 was 
to base mv opposition to this bill solely upon the ground that it affects 
alcoholic liquors. 

In my judgment there is involved in this bill a proposition as funda- 
mental and as far-reaching in regard to the organic nature of our 
Government national and State, as any possible legislation, and this 
committee would not deserve its title of fJudiciary Committee if it 
declined to consider, not simply the question of the advisability of a 
law of this kind, but the further and more fundamental question of the 
power of Congress to pass the law. 

It is an interesting fact that our present Government owes its exist- 
ence largely to the trouble that grew up in the days of the old con- 
federation in regard to interstate commerce. I took occasion to state, 
in opposing the Hepburn pure-food bill, which was an attempt, in my 
judgment, to hamper interstate commerce, that the Philadelphia con- 
vention, which adopted the present Constitution, was called into 
existence as a result of the labors of the Annapolis convention, which 
had itself been brought about by the original convention called by 
Maryland and Virginia to formulate some plan relative to commerce 
between those two States, and the provision giving Congress power 
over interstate and foreign commerce was put into the Constitution 
without practically any discussion, so apparent was the need of 
national control of commerce. 

Yet, strangely enough, from the beginning of the present Govern- 
ment down to this good hour there have been differences of opinion 
as to the power that was given to the National Government under that 
provision which says that Congress may regulate commerce with for- 
eign nations, with the Indian tribes, ana among the several States. 

One contention has been that the power of Congress was exclusive and 
left no power in the State. The otner j)osition has been that the power 
of Congress was not necessarily exclusive of the power in the States, 
and in the arguments and opinions dealing with these conflicting theo- 
ries there has been an unfortunate use of a phrase, and that phrase is 
" concurrent power." There never has been, there never could be, such 
a thing as the cbncurrent power of the States and the nation in regard 
to interstate commerce, and the decisions will amply bear out that state- 
ment. There has been, as to some subjects of interstate commerce, a 
subservient power in the State which was free to act until Congress did 
act itself. But if the powers were concurrent it would mean that the 
State's power should not bow any more to the national power than the 
national power should bow to the State power. If there was such a 
thing as a concurrent power the doctrine of the silence of Congress, 
whicn 1 shall come to in a moment, could have no force, because it 

H B— 04— 3 



84 HEPBUKN BILL. 

would not matter whether Congress ex'pressed its will or did not express 
its will. If the State's power was concurrent it would follow that it 
was coequal and that both the State and the nation could legislate and 
each would have the right to maintain that its law was to be enforced. 
The real contention and the real result of all the decisions, when you 
look not simply to what was said, but to what was actually decided, is 
this: That where the question is one of a national nature, then the 

{)ower of Congress is exclusive, but where the question is simply of a 
ocal nature, then there is power in the State to act, provided Congress 
has not b}^ its own act governed the matter. In other words, when it 
comes to a question like pilotage or harbor regulations, then the State 
can go ahead and paiss its law, and that law will be enforced until Con- 
gress undertakes to regulate in regard to such matters, and then the 
State law, even as to them, must bow to the national law, in accord- 
ance with that provision which makes a law passed in pursuance of the 
Constitution ot the United States the supreme law of the land. 

I want to review very briefly a few of the cases decided by the 
Supreme Court to show in a measure just what was decided and what 
may be said to be the conclusions of the court at present. 

If I should undertake to read the decisions themselves I would have 
to read some thousand pages, because there is at least that much 
printed matter on the specific questions involved in this case, without 
referring to the cases in regard to interstate commerce that had no 
relation to alcoholic liquors. 

In Gibbons v. Ogden, which was the first case, and perhaps the most 
famous case of them all, the court decided this: That a State regulation 
of foreign or interstate commerce actually in conflict with a law of 
Congress is void. 

It was argued by Mr. Webster, and by all the counsel who were 
against the constitutionality of the State law, that the law would be 
void whether Congress had acted or not, and the reasoning of Chief 
Justice Marshall goes to the extent of saying that since the power of 
Congress over interstate commerce is an exclusive power, that there- 
fore the State law must be unconstitutional, irrespective of its conflict 
with a specific Federal law. But the exact point decided was not that. 
He said that it was not necessary to decide that point, because here 
was a case where the National Government had acted anyway and the 
State law was in conflict with the national law, and therefore there 
could be no doubt but that the State law was unconstitutional. 

In the case of Brown v, Maryland (12 Wheat., 419), the court 
decided that a State law imposing a license to sell on an importer was 
unconstitutional, being in conflict with the Federal law. In that case 
also the reasoning of the court points to the inevitable and logical con- 
clusion that the power of Congress is exclusive, and that the action of 
the State is necessarily unconstitutional; but in that case, as in the 
Gibbons v, Odgen case, the exact point decided was that a law passed 
by a State actually in conflict with a law passed by Congress was 
unconstitutional, and went no further. The dicta of both of those 
cases seems to be unanswerable in its logic that the power of Conglress 
is exclusive, but I want to present what was decided and not what 
was said. 

The next case was the case of Willson v. Blackbird Creek Marsh 
Company (2 Pet., 245), and there, apparently, the Supreme Court re- 
versed itself. It did not reverse itself in regard to the actual decisions 



HEPBURN BILL 35 

but the reasoning in that case is somewhat in conflict with the reason- 
ing of the two former cases. There was a State law passed authoriz- 
ing the erection of a dam across a navigable stream, and the advocates 
of the exclusive theorv contended that that law was unconstitutional. 
The Supreme Court held that it was constitutional on this ground: 
That the law related to that feature of interstate commerce which was 
not national in its character and which did not require a uniform rule, 
but which might be dealt with locallv, and that in so far as Congress 
bad not said anything, the State haa the right to legislate; and right 
here I want to make this point plain. That the right of the State to 
so legislate is not owing to any right to regulate interstate commerce, 
but is the right that it has in other matters to legislate in regard to 
the territory over whic^h its sovereignty extends; and the absence of 
national legislation simply leaves the State completely free to legislate 
as to the things within its domain, not by virtue of any power it has 
over interstate commerce, because it has none, but because of its other 
powers. In this particular case the legislation was upheld because 
relating to commerce only in its local aspects and not in conflict with 
any existing Fedei^al' law. 

Mr. LiTTLEFiELD. What justice delivered that opinion ? 

Mr. Sherley. That decision was rendered by Justice Marshall and, 
as I have said, was apparently a decision the reasoning of which was 
somewhat in conflict with the reasoning in the two former cases of 
Gibbons v. Ogden and Brown v. Maryland. 

Mr. LiTTLEFiELD. Were the other cases referred to, discussed, dis- 
tinguished, and criticised? 

Mr. Sherley. They were distinguished. Commerce in this case 
Tvas affected but locally and in the other cases fundamentally, and they 
were cases where Congress had acted; but the logic of those opinions, 
if carried out, perhaps might have suggested a different decision in 
the Blackbird Creek case. 

Then came the case of New York v. Miln (11 Pet., 102) which held 
that a law requiring masters of vessels to make a report of the name, 
place of birth, etc., of every person brought as a passenger unto the 
State of New York from other States or foreign countries, was consti- 
tutional, being the exercise of police power and not in any way regu- 
lating commerce. The court practically said in its dicta that the police* 
Sower in the State is not limited or confined by the power of the 
[ational Government in regard to interstate commerce, but the facts 
of that case were simply this: The law required that masters should 
make a report of the passengers that came m as to who they were, so 
that the State might nave some record in regard to immigration and 
mi^ht protect itself against pauper immigration, and the judges in 
deciding that case held — and it seems to me rightfully — that the act in 
question was in no way an interference with interstate commerce nor 
could be considered to really touch interstate commerce at all; that it 
was simply a regulation of a matter local entirely and not interstate or 
foreign. 

Then came the License cases (5 How., 504). In the License cases it 
was held that certain regulations of the States of New Hampshire, 
Massachusetts, and Rhode Island requiring a license to sell liquors 
imported from another State were valid. Each of the judges con- 
curring in the judgment rendered, delivered a separate opinion, and 
the reasons in support of the conclusion of the court are widely diver- 



36 HEPBURN BILL. 

gent. The chief question concerning which the judges differed was as 
to whether the regulations involved in that case were really regulations 
of interstate commerce or not. And it is to be noted that, in the opin- 
ion of several of the judges, the distinction is clearly drawn between 
a prohibition to imJ)ort and a prohibition to sell after importation. 
Mr. Justice Woodbury, in his opinion, among other things, said: 

It is manifest, also, whether as an abstract proposition or practical measure, that a 
prohibition to import is one thing, while a prohibitibn to seir without license \s 
another and entirely different. The first would operate upon foreign commerce on 
the voyage. 

The latter affects only the internal business of the State after the foreign importa- 
tion is completed and on shore. The subject of buying and selling within the State 
is one as exclusively belonging to the power of the State over its internal trade as 
that to regulate foreign commerce is with the General Government under the broad- 
est construction of that power. The idea, too, that a prohibition to sell would be 
tantamount to a prohibition to import does not seem to me either logical or founded 
in fact, for even under a prohibition to sell a person could import, as he often does, 
for his own consumption and that of his family and plantation, and also, a mer- 
chant extensively engaged in commerce often does import articles with no view of 
selling them here, but of storing them for a higher or more suitable market in 
another State or abroad. 

He then states that the licenses involved in those cases were neither 
regulations of interstate commerce nor of foreign commerce, and holds 
that whether such laws are to be classed as police measures or as regu- 
lations of the internal commerce of the States, or as taxation merely, 
is immaterial so long as they do not affect interstate or foreign com- 
merce until after the subject-matter of that commerce touches the soil 
or waters within the limit of the State. 

I have called attention expressly to these views because the license 
cases in what they actuallv decide go perhaps as far as any case in the 
rights that they give to the State government to pass laws affecting 
interstate commerce, and yet it is apparent that there was noted a clear 
line of distinction between the rignt to sell and the right to import, a 
distinction that in my judgment is vital in considering 3ie constitution- 
ality of the proposed law. Some of the opinions, however, in the 
license cases are directly opposed in their reasoning to that set forth 
in Gibbons v. Ogden, and Brown v. Maryland. 

Mr. LiTTLEFiELD. Were those cases discussed and distinguished? 

Mr. Sherley. They were discussed in some three or four hundred 
pages and a man can find an expression in these different cases as to 
any proposition in regard to interstate. commerce law that you want. 
I could take the time of this committee for hour** reading an expres- 
sion by one judge who has reached the conclusion that the State had 
reserved all of its powers and another who has reached the conclusion 
that the National Government had stripped the State of every power, 
but it is not what the judges have said but what they have decided 
which constitutes the law of the land. 

Very shortly after the decision in the License cases came the Passen- 
ger cases (7 How., 283), which -presented the question of the constitu- 
tionality of laws of the States of Massachusetts and New York requiring 
masters of vessels to pay to the health officers of the State board a cer- 
tain sum for each passenger landed. The court held such laws uncon- 
stitutional, and abandoned in a large measure the ruling laid down in 
the License cases and apparently adopted the doctrine of exclusive 
power of the National Government. 

Then came the case of Cooley v. Board of Wardens (12 How,, 299), 



HEPBUBN BILL. 37 

and this case is apparently a compromise between the position of those 
advocating exclusive national power and those advocating the reserved 
power of the States. The question presented was the constitutionality 
of the law of Pennsylvania establishing regulations of pilots and pilot- 
age for the harbor of Philadelphia. The court sustained the validity 
of the State law and laid down this rule, which I believe to be a safe 
rule to follow to-day. 

When the nature of a power like this is spoken of, when it is said that the nature 
of the power requires that it should be exercised exclusively by Congress, it must be 
intended to refer to the subjects of that power and to say that they are of such a 
nature as to require exclusive legislation by Congress. Now, the power to regulate 
commerce embraces a vast field, containing not only many but exceedingly various 
subjects quite unlike in their nature, some imperatively demandinj^ a single uniform 
rule, operating equally on the commerce of the United States m every port, and 
some, like the subject now in question, as imperatively demanding that diversity 
which alone can meet the local necessities of navigation. Either absolutely to affirm 
or deny that the nature of this power requires exdusive legislation by Congress is to 
lose sight of the nature of the subjects of this power and to assert concerning all of 
them what is really applicable but to a part. Whatever subjects of this power are 
in their nature national, or admit only of one uniform sjstem or plan of regulation, 
may justly be said to be c»f such a nature as to reqmre exclusive legislation by 
Congress. 

If this rule is borne in mind and applied right on down through the 
various cases, you will find that a great deal of the diflSculty caused 
by reason of the dicta of the court vanishes and is lost sight of. After 
that case was decided the old controversy was in a measure dropped, 
and the question that the court came to consider was as to the nature 
of the interstate commerce that the particular law affected, and if it 
was national they held that the State law could not be held to be con- 
stitutional, and if it was local they held that the State law was a valid 
exercise of the powers of the State. 

Then came the case of Bowman v. Railway Co. (125 U. S. . 465), which 
expressly decided this question: That the snipment of alconolic liquors 
from one State into another State could not be prevented by a State 
law. That was followed by the case of Leisly v. Hardin (136 U. S., 
100), which went a step, further and followed up the doctrine which 
, always had been the law in regard to foreign commerce, but which 
had expressly not been the law in regard to interstate commerce, that 
the right to import carried with it the right to sell. The Bowman case 
decided that you had the right to import and that the State could not 
interfere with it. Of course, at that time there was no national leg- 
islation warranting the State to interfere. You had the silence of 
Congress, and they held that the silence of Congress as to a national 
matter indicated that that commerce should remain free, whereas the 
silence of Congress as to a local matter indicated the will of Congress 
that the State might legislate. In other words, they gave just 
opposite meanings to the inaction of Congress according as the law 
involved related to a subject, local or national. The Bowman case 
decided expressly that the shipment of alcoholic liquor from one State 
to another could not be prevented by a State law, and then the Leisly 
case decided that not only could the importation not be prevented, but 
that the sale could not be prevented. 

Mr. LiTTLEFjELD. In the original package? 

Mr. Sherley. Yes, sir; and in deciding that they overruled the 
Pierce v. New Hampshire case, which was one of the License cases, 
and in that case the court, as I have just shown, held that the right to 



38 HEPBURN BILL. 

sell was not an inherent part of the right to introduce goods from one 
State into another. The Pierce case was directly opposed to the 
Brown v. Maryland case. The Brown case related simply to foreign 
commerce, whereas the Pierce case related to commerce between the 
States. 

The Leisly case held that commerce between the States was upon the 
exact same ground that foreign commerce was, and permitted not only 
the importation of, but also tne sale the first time in the original pack- 
age. That decision, in my judgment, is open to severe criticism, and 
it did cause a great deal of criticism because of its failure to recognize 
the distinction between the right to sell and the right to import. I do 
not believe that it follows as a matter of logic, certainly in regard to 
interstate commerce, however it might be in regard to foreign com- 
merce, that the right to import carries with it the right to sell. In 
foreign commerce that might be so, because the importer not having 
any reason to bring things into the country except for the purpose of 
selling them, his right to import would be practically annulled if you 
did not give him the right to sell, but in regard to interstate commerce 
that is not necessarily so. • 

A man may want to import into a State for his own use without 
regard to his right to sell, and it seems to me that the right to sell is 
an incident and not a fundamental aspect of interstate commerce; and 
a^in 1 wish to say that if this committee will bear that in mind, that 
distinction between selling and the right of importation, they will come 
to the one point that, it seems to me, the whole proposed present law 
turns upon. 

The court, unfortunatelv, in those cases went to talking, and the 
judges said a good man}^ things outside of w hat they decided. They 
decided exactly what I have said, but in deciding that, they intimated 
that Congress could break its silence and by an aflSrmative statement 
permit the State to do that which they had just decided it could not Jo 
before, an absolutely illogical position, because if the power of Con- 
gress was exclusive as to interstate commerce where the subject was 
national, it follows that by the very meaning of the word exclusive 
there is carried the idea of an absence of power in the States; and Con- 
gress, as we all know, can not create power in the States. They 
may remove obstacles from the State's right to exercise another power, 
but they can not create a power in the State, and that has been decided 
repeatedly and needs no argument. The court, however, said Congress 
could give permission, and Congress very quickly took advantage of 
that suggestion and passed the Wilson law. 

The Wilson law came up for construction as to its constitutionality 
and as to the constutionality of the Iowa law in the Rahrer case, and 
the court in that case said a great deal, but did not decide very much. 
It decided this proposition: That Congress had the power to rob inter- 
state commerce of its interstate character before the sale instead of 
allowing it to have that interstate character until after the sale. In 
other words, the effect of the Wilson bill was simply to put the law 
back where it was in regard to interstate commerce before the Leisly 
decision, that decision, as I have stated, having held as to interstate 
commerce that the right to import carried the right to sell. Congress, 
by the Wilson bill, put the law as to interstate commerce back where 
it was before that case was decided and said that the right to import 
did not carry the right to sell. 



HEPBUBN BILL. 39 

Now, this law came up again before the Supreme Court in the Rhodes 
case, and there it was contended that the law not only prohibited the 
right to sell, but prohibited the right to import, and the Supreme 
Court decided that a proper construction of the words of the act lim- 
ited it to the right to sell and did not touch the other right to import, 
and in deciding that case the court not only expressed the idea that it 
had not decid^ the constitutional question of whether if it had gone 
to the extent contended for it would have been constitutional, showing 
in the mind of the judge rendering that decision that there was a seri- 
ous question as to such power being possessed by Congress, but it 
also makes a distinction which is very pertinent. It speaks of the 
right of sale as being an incident of interstate commerce, but not 
bein^ one of the fundamental aspects of interstate commerce, the dis- 
tinction that I made a few moments ago. 

In other words, it may be that Congress can say that we will, by 
affirmative legislation, decide that goods going into a State shall 
become intermingled with the rest of the propert}^ of the State so as 
to be subject to the ^tate law at an earlier period than would happen 
ordinarily, but to say that Congress can say further that a State by 
its law shall be given the power to reach out into an adjoining State 
and prevent the goods of such State coming within its borders, and 
that a contract which has been made there shall not be enforced, is an 
entirely different proposition, and that is the proposition you are con- 
fronted with by the proposed law. That bill changes the present law 
to this extent, that it uses the words ''the boundary of " and then 
'^ before and after delivery." Those six or seven words are the only 
changes between the Wilson law as it now stands and this proposed 
law, excluding the second section, which is largely declaratory of the 
first. 

In other words, this is an effort to make the Wilson law mean what 
the advocates of the prohibition laws of Iowa contended it meant in 
the Supreme Court and what the Supreme Court decided it did not 
mean. What will be the effect of this law, if passed? Of course one 
effect of the law, as has been stated by the gentleman who preceded 
me, would be to transfer the storm center from Washington to the 
various State capitals. 

Mr. Thomas. Is it your contention that Congress has not the con- 
stitutional power to prohibit the transportation of intoxicating liquors 
from one State into another? 

Mr. Sherley. No, sir. I do not say that, because the Supreme 
Court has expressly decided the contrary in the lotteiy case. The 
Supreme Court held that lottery tickets were articles of commerce; 
ratner an unusual decision, but it is the law. They declared that a 
lottery ticket was an article of commerce and being such, the power 
of Congress to regulate included the power to prohibit; and I contend 
right here and frankly admit that you can write a national law which 
will prohibit the transportation of liquors; but that is not what you 
are trying to do under this bill. You are undertaking to lift the oan 
that is placed upon the States in regard to interstate commerce and 
permit them to legislate as to interstate commerce. If that be not the 

f)urpose of this bill there is no use of passing it, because, under the 
aw as it now stands and as construed in the Rahrer case, any State has 
the power the moment imported alcoholic liquors are delivered to the 



40 HEPBUBN BILL. 

original consignee to treat them the same as if they had been manu- 
factured in the State and not shipped in. 

- In other words, they can say to the consignee, "You shall not con- 
sume it; you shall not sell it; you shall not give it away." They have 
all the power they can possibly have over any subject the moment it 
reaches the hand of the consignee under the present. law, and I believe 
there are plenty of ways by which the States to-day can make effective 
their laws without undertaking to go out of the province of State sov- 
ereignty into that of national sovereignty and to give their laws extra- 
territorial effect. When whisky comes into the State of Iowa the 
State of Iowa gets absolute jurisdiction and the National Government 
loses absolute control over it; then the State can do as it pleases, and 
can make its prohibition eflfective if it wants to. 

Mr. LiTTLEFiELD. Thosc practical diflSculties do not exist? 

Mr. Sherley. I do not say they do not exist, but I do not consider 
that the practical difficulties in a case have the right to make this body 
undertake to disregard that great line of cleavage between what con- 
trol belongs to the nation and what to the State.. You are making a 
precedent that is most dangerous. 

Mr. LiTTLEFiELD. It was held in the Leisly case that the original 
package was an essential feature of interstate commerce? 

Mr. Sherley. That was based on the principle of the right to sell 
in the original package. 

Mr. LiTTLEFiELD. That involves the original -package proposition? 

Mr. Sherley. No; the original-package proposition was involved 
in the Bowman case, which held that you had tne right to import in 
the original package. 

Mr. LiTTLEFiELD. The Leisly-Hardin decision held that the right 
to sell was an essential feature of interstate commerce? 
, Mr. Sherley. Yes, sir. 

Mr. LiTTLEFiELD. And for that reason no State law could prohibit 
the sale? 

Mr. Sherley. Yes, sir; but I contend that they have the power now 
to prevent the sale. 

Mr. LiTTLEFiELD. If vou cau eliminate one element of interstate 
commerce by transportation, what is the matter with the other elements ? 

Mr. Sherley. The element you are eliminating in regard to the 
sale is not a real element, but only an incident of interstate commerce. 
There can be interstate commerce without the power in the consignee 
to sell, but there can not be interstate commerce without the power 
to import. One goes to an incident of interstate commerce and the 
other goes to the commerce itself, and my position is that Congress 
can not legislate so as to give to the States the power to regulate 
interstate commerce, however much they may be able to lift the 
restrictions now on the States so as to make a subject of interstate 
commerce lose its interstate character at an earlier period than it would 
otherwise. That point is clearly shown in the wording of the decision 
in the Rahrer case. The Rahrer case in effect says: '^ We do not cre- 
ate any rights in the State; we simply lift the ban of the National 
Government which it has by virtue of its regulation of interstate com- 
merce and permit the State laws to operate." . 

Mr. LiTTLEFiELD. As to an element of interstate commerce? 

Mr. Sherley. As to an incident. 



HEPBUKN BILL. 41 

Mr. LiTTLEFiELD. Did the decision call it an incident rather than an 
element of interstate commerce? 

Mr. Sherlet. The Rhodes case, in reviewing the Rahrer case, did. 
The court used this exact language: 

While it is true that the ri^ht to sell free from State interference interstate-com- 
merce merchandise was held in Leisly v. Hardin to be an essential incident to inter- 
state commerce, it was yet but an incident, as the contract of sale within a State in 
its nature was usually subject to the control of the legislative authority of the State. 

On the other hand, the right to contract for the transportation of merchandise 
from one State into of across another involved interstate commerce in its funda- 
mental aspect, and imported in its very essence a relation which necessarily must be 
governed oy laws apart from the laws of the several States, since it embraced a con- 
tract which must come under the laws of more than one State. The purpose of 
Congress to submit the incidental power to sell to the dominion of State authority 
should not, without the clearest implication, be held to imply the purpose of subject- 
ing to State laws a contract which in its very object and nature was not susceptible 
of such regulation even if the constitutional right to do so existed, as to which no 
opinion is expressed. (170 U. S., p. 424.) 

The question here asked by the court and left undecided must, in 
my humble judgment, be answered in the negative. 

While Congress can lift its arm from the State so as to give to it the 
free exercise of the power it would naturally have within its State lines, 
it can not give to the State the power to go out beyond the State limits 
and regulate interstate commerce, and I believe that to be the true dis- 
tinction, the distinction that is so strongly intimated in the Rhodes 
decision. 

Of course, this is a very close question, and I am free to confess that 
it is one concerning which there can be readily differences of opinion. 
The point that I make is this: That the Wilson law says, as construed 
by the Supreme Court, that the interstate character of alcoholic liquors 
shall be lost before instead of after the sale. 

It did not go to the vital aspect of interstate commerce. That aspect 
of it which is vital and fundamental is the right of importation from 
one State to another, and it does not seem to me that the right of 
importation necessarily- carries with it the right to sell, although it 
was so declared back in the Leinly case in regard to interstate com- 
merce, and in regard to foreign commerce in the case of Brown v. 
Maryland. What you are asked to do here is to absolutely prevent 
interstate commerce, not by a national law, but by permission to the 
State to prevent it. The State has no power over the fundamental 
aspects oT interstate commerce. 

It has power over those things which are incident to it, which are 
local to it. You can not make any regulations in regard to pilotage; 
you can not make any regulations in regard to any sort of tax or fee, 
or anything else, without in some wa}^ affecting interstate commerce; 
that is, if it applies to anything outside the State at all. There is a 
vast distinction, however, between affecting interstate commerce in that 
sense and affecting it in the sense of absolutelj^ preventing its exist- 
ence. Congress itself can prevent its existence, and Congress should 
do it if it wants to be honest and believes it ought to be done. 

Mr. Smith. Does not the sale of an article imported into a State 
bear about the same relation to interstate commerce that the manu- 
facture of the article does? 

Mr. Sherley. In this connection it certainly does. 

Mr. Clayton. That was decided in the sugar case? 

Mr. Sherley. Yes, sir. 



42 HEPBURN BILL. 

Mr. LiTTLEFiELD. What is the right to import without the right to 
sell? 

Mr. Sherley. It is a very considerable right, for you may have the 
right to sell in the State where the goods are made. I live, for instance, 
in the State of Iowa, and I go into the State of Kentucky, where, as I 
have heard it said, the whisky is so good that intemperance becomes a 
virtue, and I conclude that I want to get some of that whisky and carry 
it back to Iowa. I make a contract m the city of Louisville by which 
the manufacturer is to ship to me, in the State of Iowa, some whisky. 
That is a very valuable right to me, even if it does not. carry with it 
the right to sell the whisky in Iowa. 

Mr. LiTTLEFiELD. But as a business proj)osition, is the right of 
import of any substantial value without tne right to sell ? 

Mr. Sherley. Unquestionably, without the right to sell in the 
place where imported, because the right to import may be exercised 
after the sale has already been made in another State. In other words, 
you make your contract of sale in the State of Kentucky and you carry 
out your importation by sending it over to the State of Iowa. 

Mr. LiTTLEFiELD. You Carry it through the State of Iowa? 

Mr. Sherley. Into the State. The mistake you make is in sup- 
posing that the only sale that can be made is one made after delivery. 
Now, the import sale, the sale that really gives commercial value to 
the commodity, is the sale that is made before delivery. A person 
may contract in another State for the purchase of any particular com- 
modity and it becomes interstate commerce afterwards. Of course 
there would be no value in the right to import if you could not buy 
and sell at either end of the line. 

Mr. LiTTLEFiELD. The sale takes place at that point quite largely, 
although purchased for shipment into another State? 

Mr. Sherley. Yes, sir; the sale becomes completed, for instance, 
in Kentucky, and if this proposed law is passed and is constitutional, 
the effect of it will be to say that while you can buy if vou want to in 
another State, one of the incidents of the contract — that it shall be 
shipped to you into the State of Iowa — shall not be carried out, and then 
you have the beautiful spectacle of onp. State absolutely annulling the 
law of another State, and that is what I mean by saying that this law 
gives an extra territorial effect to the laws of the States. 

Mr. LiTTLEFiELD. Docs not the law substantially do that now? I 
understand your illustration, which is entirely sound; although liquor 
is sold in Kentucky to be delivered in Iowa, the sale takes place in 
Kentucky. Now, does not the law that deprives the consignee in Iowa 
of the right to sell in original packages impair the commercial value 'iJ 

Mr. Sherley. Yes, sir; but does not destroy it. 

Mr. LiTTLEFiELD. Do you contend, as a commercial proposition, 
that the main purpose of the transportation from Kentucky into Iowa 
is not that it may be sold, and that when the law prevents it from 
being sold the main purpose of the consignee is not defeated? 

Mr. Sherley. If your premises were true these people would not 
be here advocating tnis present law. They think there is a distinc- 
tion. They think it interferes very materially with interstate com- 
merce, and if they did not think so they would not be here advocating 
a proposition that goes further than any proposition ever submitted 
to the national legislative body. 
' Mr. Parker. Have you considered the effect of the Wilson law on 



HEPBURN BILL. 43 

such a case as this? Suppose the Iowa law was in New York City, 
where there are large jobbing houses and where a jobbing house pur- 
chases a large quantity of liquor and then ships it to another State; 
what about that second sale to be exported somewhere else? 

Mr. Sherley. I am inclined to thmk, without having looked at that 
specific point, that it would be treated as a separate transaction, so that 
tne jobber sending on his goods into other States would be considered 
as beginning a new interstate transaction which would be entitled to 
the same privileges as if there had been one transaction, provided, of 
course, the laws of New York permitted the jobber to hold the liquor 
received from another State and did not immediately confiscate it after 
receipt by the jobber. 

Mr. Parker. Does your argument go so far as to say that the State 
law can not prevent a purchase in one State to be carried into another 
and then shipped into a third State? 

Mr. Sherley. I am inclined to believe that, for instance, alcoholic 
liquors — to make the case specific — bought in Kentucky and brought 
into Iowa and delivered to an Iowa consignee, could bv the law of 
Iowa be prevented from being exported out of Iowa into another 
State. 

Mr. Parker. You think it would? 

Mr. Sherley. Yes, sir; for this reason, that the very moment the 
interstate journey is ended, that moment the property passes from 
under the protection of the national law obtained by that provision 
giving Congress power to regulate commerce and becomes a part of 
the general property within the State. But this question might come 
up, as to whether one State could prevent the exportation oi articles 
of commerce to another State, but that would be under an entirely 
different provision of the Constitution. 

But laying aside that question, which has no bearing here, 1 am 
inclined to think that the moment whisky came in there and became 
absolutely a part of the rest of the wealth of the State, that then the 
laws of the State could seize it and absolutely prevent its use or sale or 
consumption in any way. 

Mr. Palmer. What are your clients' fears based on, that Congress 
will violate the Constitution ? 

Mr. Sherley. I have no clients. I am a member of Congress doing 
my duty, as I think, to uphold the Constitution of the United States. 

Mr. Palmer. Your constituents, then, because you stated that you 
represented one of the largest distilling districts in Kentucky. 

Mr. Sherley. My constituents object to this law naturally, that is, 
my whiskv and beer constituents, because it does interfere with their 
trade. The National Government recognizes that trade and raises a 
tremendous revenue out of it, and it ought to have the courage and 
honesty to stand in the open and either legislate so as to prevent alco- 
holic liquors being made at all, by putting the tax so nigh as to be 
prohibitory, or it ought to have the courage to protect the men engaged 
in that pursuit, in ordinary common fairness. 

That IS my position aside from the question of the legal right. But 
this committee must determine p,nd has no right to shirk the responsi- 
bility as to whether a law is constitutional and what is going to be the 
effect if you pass it. If you establish this precedent Congress can have 
the same power as to anv article of interstate commerce. Take, for 
instance, tobacco, why should not Congress pass a law prohibiting 



44 HEPBURN BILL. 

? Tactically the importation of tobacco from one State to another^ 
ou know the cry that goes out in regard to cigarettes, and in regard 
to smoking generally. There are people who believe just as strongly 
in regard to the destruction of the nation from cigarette smoking as 
from alcoholic liquor drinking. Why should not Congress pass a law 
to give the States absolute power to prevent interstate commerce in 
regard to tobacco, and then, when you have gotten through with 
tobacco, why should you not take up a number of other things ? 

There are a great many people in this country who believe that the 
trusts are going to absolutely destroy America. We all know that 
the State of New Jersey has a little habit of incorporating trusts and 

fiving them the power to do whatever they want in any State but New 
ersey. We have suffered from it. Why should not this ^reat body 
pass a law which will say to the States that they may prohibit trust- 
made goods coming into the State, the same as they may now prohibit 
trust-made goods being manufactured in the States? 

Mr. LiTTLEFiELD. Why do you not do that in Kentucky now and 
drive such corporations out of Kentuckjr ? 

Mr. Sherley. Kentucky can prohibit them doing business, but it 
can not prohibit their goods coming in. If you are going to legislate 
this power, give us the power to prevent trust goods coming in, and 
the State of Kentucky will be able to take care of the matter. 

Mr. LiTTLEFiELD. What good would there be in sending commodi- 
ties into Kentucky if they could not be disposed of? They might 
export them out. 

Mr. Sherley. There would be this particular good, that they would 
have the right to make the sale in advance and send direct to the con- 
sumer, and until you pass a law as to commodities other than alcoholic 
liquors, going as far as the Wilson law already has gone, they would 
have the power to sell them within the State. 

Now, in regard to alcoholic liquors, it seems to me that the logic of 
this case is simply to say this, we will let the States go back into that 
condition of commerce that existed prior to the formation of the 
National Government, and let them under the police powers, by their 
desire to do what they think necessary or convenient, so legislate as 
to prevent free intercouse between the States. But the precedent 
that would be established would doubtless lead to legislation affecting 
other articles of interstate commerce. It would simply become a 
question of the strength of any particular State in the National Con- 
gress to obtain legislation affecting any other commodity that it might 
desire. 

And while the Vance case, which was decided at the same time as 
the Rhodes case, holds that no State might directly discriminate against 
the products of another State it would be practicable to indirectly dis- 
criminate; for instance, a State not manufacturing a lard product made 
out of cotton-seed oil might decide to prevent such product of a sister 
State being brought into competition with the lard manufactured 
within its own borders from animal fat. If it was powerful enough 
to obtain from Congress a law permitting it to treat lard made from 
cotton-seed oil shipped into the State the same as if created there, it 
could then by a sufficient tax practically prevent the shipment, or 
could entirely prohibit it on the ground that such product was injuri- 
ous to health, and could thereby create a monopoly from the lard 
made from animal fat. 



HEPBUKN BILL. 45 

This is but a crude illustration, but it does illustrate what is possible 
to be done by the States should Congress decide to follow the danger- 
ous precedent set forth in this case, having in mind that in the course 
of time every precedent, even though established for a good purpose, 
is taken advantage of for some less worthy object. It seems to me 
that this committee should hesitate, even if it should determine that 
Congress has the right to pass such a law, to recommend its passage. 
I have confined myself to the question of the constitutionality of 9ie 
proposed measure, but in conclusion I can not refrain from saying 
that in my humble judgment no legislation has done more to corrupt 
the morals of the people than the prohibition legislation attempted 
from time to time. If anything is a proved fact, it is that you can not 
restrict the personal liberty of the inaividual by prohibition laws, and 
that their cnief effect is simply to cause an evasion of the law and a 
violation of the oaths of various officers charged with the duty of 
enforcing the law. 

Mr. Chairman, I desire to thank you and the committee for your 
considerate attention. 

ABOUMENT OF BOBEBT CBAIN, ESQ., OF BALTIMOBE, MS. 

Mr. Chairman and Gentlemen: As general counsel for the United 
States Brewers' Association, I desire, with your permission, to present 
as briefly as possible some of the reasons why the so-called Hepburn 
bill should not become a law. In the short time at my disposal I can 
merely suggest some of them. 

From an economic and temperance standpoint I think this bill is 
thoroughly vicious, but I desire more particularly to discuss it from 
a legal standpoint. Speaking as a lawyer, after careful study of the 
question, it is my opinion that the bill, if passed, will be held uncob- 
stitutional for a number of reasons. 

This same bill in the last session of Congress was introduced, reported 
favorably, and passed the House before its opponents knew that such 
a bill was even pending. As soon as the bill was brought to their 
attention, a hearing was requested before the Senate Committee on 
Interstate Commerce, and after full argument that honorable commit- 
tee rejected the measure, and it died. 

Before this bill can become a law the commerce clause of the Con- 
stitution of the United States must be absolutely sacrificed and disre- 
garded; the famous opinions of John Marshall m Gibbons v. Ogden 
and in Brown v. Maryland must be repudiated; the police powers of the 
several States must be given extraterritorial effect, and the regulation 
of commerce, which in the plainest Anglo-Saxon language was dele- 
gated by the Constitution to the Congress of the United States exclu- 
sively, must be transferred in this special instance to the several States. 

1 have not the time to go into tnis as thoroughly as I should like, 
but, briefly speaking, as you know, this bill is introduced to overcome 
the legal effects of a decision of the Supreme Court of the United 
States growing out of the so-called Wilson bill, passed August 8, 1900. 

The Wilson bill was also passed at the request of the friends of pro- 
hibition, to overcome the legal effects of a decision of the Supreme 
Court. It is worth while to examine these decisions. 

In Leisy v. Hardin (135 U. S., 100), "the original-package case," the 
Supreme Court held that no State had the power to control or prohibit 



46 HEPBURN BILL. 

the sale of intoxicating liquors transported from one State into another, 
so long as it remained in original packages. 

The language of Chief Justice Fuller in this case has an important 
bearing on the question of the constitutionality of this proposed bill. 
"The power vested in Congress," he says^ -to regulate commerce 
with foreign nations and among the several states and with the Indian 
tribes, is the power to prescribe the rule by which that commerce is 
to be governed, and is a power complete in itself, acknowledging no 
limitations other than those prescribed in the Constitution. It is coex- 
tensive with the subject on which it acts, and can not be stopped at 
the external boundary of a State, but must enter its interior and must 
be capable of authorizing the disposition of those articles which it 
introauces, so that they majr become mingled with the common mass 
of property within the territory entered." 

Further on he says: "These decisions rest upon the undoubted right 
of the States of the Union to control their purely internal affairs, in 
doing which they exercise powers not surrendered to the National Gov- 
ernment; but whenever the law of the State amounts essentially to a 
regulation of commerce with foreign nations or among the States, as it 
does when it inhibits, directly or indirectly, the receipt of an imported 
commodity, or its disposition before it has ceased to become an article 
of trade between one State and another, or another country and 
this, it comes in conflict with a power which in this particular has been 
exclusively vested in the General Government, and is therefore void." 
Immediately following this decision, in order to overcome its effects, 
the Wilson bill was introduced and became a law on August 8, 1890. 

On May 25, 1891, the Supreme Court for the first time construed 
this Wilson bill in the case of Wilkerson v, Rahrer (140 U. S., 572) on 
the case as presented, that intoxicating liquors transported into the 
State of Kansas and there sold, after the passage of this act, were sub- 
ject to the existing laws of that State as to the selling of such liquors. 

After this came the case of Scott v, Donald (165 if. S., 58), decided 
January 18, 1897, which construed the South Carolina dispensary law 
of January 2, 1895, and held it to be unconstitutional and void as a 
hindrance to interstate commerce; and held, further, that the dispen- 
sary law was not within the scope and operation of the Wilson Act. 

When this Wilson bill again came before the Supreme Court of the 
United States in the case of Rhodes v. Iowa (170 U. S., 415) the court 
rather dodged the question of its constitutionality, and, in an exhaus- 
tive opinion defining its scope and meaning, held that under its provi- 
sions liguors transported from one State to another remain under the 
protection of the interstate-commerce law until they are delivered to 
the consigDee, and that the State law is inoperative to reach them until 
they are delivered by the common carrier to the person to whom they 
are consigned. 

The present Hepburn bill is designed to overcome this just and 
equitable interpretation of the Supreme Court, by providing that State 
liquor laws shall become operative upon a shipment of liquor imme- 
diately upon its "arrival within the boundary of such State or Terri- 
tory before and after delivery " the addition of the last four words 
being the only amendment of the existing law. In other words, the 
mere physical arrival of the liquor on the boundary of any State, even 
though it be intended for private use, shall make it subject to the 
operation of State laws, and shall enable any State to empower its 



HEPBUBN BILL. 47 

officials to confiscate it or destroy it or do as they please with it regard- 
less of the purposes for which it is intended, or of the rights of any 
individual or of the consignor or consignee. 

If the Wilson bill had contained the provision of the proposed Hep- 
burn bill — that the police power of the States should attach to articles 
of commerce before delivery — the Supreme Court would of necessity, 
in the Rhodes case, have held the Wilson bill to be unconstitutional, 
for the plain reason that the whole theory of that decision rests upon 
the basic principles involved in the subject under discussion, and which 
we now say are settled law, to wit: That the power of Congress over 
interstate commerce is complete; that spirits and malt liquor are legiti- 
mate subjects of interstate commerce; that interstate commerce begins 
with the shipment and ends with the arrival of the article in the hands 
of the consignee, and until such arrival interstate commerce continues; 
and as long as interstate commerce continues, the police powers of the 
State can not attach, and such police power of the State can attach to 
interstate commerce shipments only when the shipment has reached 
the consignee. 

When the shipment reaches the border line of the State, and is yet 
to be delivered, the goods are still in transitu, are subjects of inter- 
state commerce, and under control of the interstate commerce clause 
of the Constitution. If the police power could seize or lay hands on 
such goods at the border line the police power would be given extra- 
territorial jurisdiction; would supersede interstate commerce in its 
control of the shipment, and would destroy the rights of the citizens 
of the several States to ship articles of commerce and have them 
delivered to the purchaser in another State. 

Mr. Pearre. Do you say that the Rhodes case so decides, or do you 
so contend? 

Mr. Crain. I mean to say that the Rhodes case preserves the com- 
nierce clause of the Constitution inviolate, and that it either says or 
justifies the conclusions and principles of law I have just stated. You 
can't, under the law, touch an interstate shipment until it reaches the 
hands of the consignee. 

Mr. Pearre. You contend that Congress has not the power to 
remedy that? 

Mr. Crain. I contend that Congress has not the power to change 
the constitutional law of the land. I contend that the Supreme Court 
held in the Rhodes case that "arrival" meant, not arrival in the State, 
as the Wilson act says, but delivery to consignee, because the court 
did not believe that Congress had the power to do what our prohibi- 
tion friends want you to do, and what they thought they had done 
when they got you to pass the Wilson bill. 

1 may say that this measure in the last Congress, as well as in this, 
has had some support because its real character was not understood. 
You have heard a great deal from our very estimable prohibition friends 
about the abuses and evasions under the existing law, and like the 
advocates of the bill before the last House, they argue that this bill 
merely enables the State to suppress these abuses, and that it in no 
wise interferes with the right of any individual to import for his own 
use any liquor he desired. If this were so, the brewers of the United 
States would not oppose this bill, for they are not defending or asking 
protection for any such abuses or evasions; but unfortunately it is not 
80, as the prohibitionists who conceived and foster this bill well know. 



48 HEPBUBN BILL. 

It has had .support because at first blush the bill looks, as its champion 
in the last Congress argued, like ^^a proposition simply to give to the 
States the ri^ht of local self-government; the right o^ a majority in 
any community to make their own laws and to enforce them." But it 
does very much more than this. 

' Its own chief advocate on the floor of the last House said, "this is a 
proposition to surrender back to the States certain control which was 
given by the Federal Constitution under the commerce clause to Con- 
gress." He certainly stated the fact, even if he did thereby admit the 
utter unconstitutionality of the act. But it is even much more than 
this. It does for a State by indirection what the State itself can not do. 

The error of such contentions as to the power of Congress is clearly- 
established by the decision of the Supreme Court in the Rhodes case 
and in the Vance v. Vandercook case, to which I shall refer presently, 
and by what is apparently undisputed law from an examination of the 
authorities. 

Thus Justice White, in delivering the opinion in the Rhodes case, 
cites the following from the Bowman case (125 U. S., 465): 

It might be very convenient and useful in the execution of the policy of prohibi- 
tion witnin the State to extend the powers of the State beyond its territorial limits. 
But such extraterritorial powers can not be assumed upon such an implication. On 
the contrary, the nature of the case contradicts their existence. For if they belong 
to one State they belong to all, and can not be exercised severally and independently. 

It is enough to say that the power to regulate or forbid the sale of a commodity, 
after it has been brought into the State, does not carry wdth it the right and power 
to prevent its introduction, by transportation, from another State. 

The court further says: 

It is not gainsaid that the effect of the act of Congress was to deprive the receiver 
of goods shipped from another State of all power to sell the same in the State of Iowa 
in violation of its laws, but while it is thus conceded that the act of Congress haus 
allowed the Iowa law to attach to the property when brought into the State before 
sale, when it otherwise would not have done so until after sale; on the other hand, 
it is contended that the act of Congress in no way provides that the laws of Iowa 
should apply before the consummation by delivery of the interstate-commerce 
transaction. 

To otherwise construe the act of Congress, it is claimed, would cause it to give to 
the statutes of Iowa extraterritorial operation, and would render the act of Congress 
repugnant to the Constitution of the United States. It has been settled that the 
effect of the act of Congress is to allow the statutes of the several States to operate 
upon packages of imported liquor before sale. (Re Rahrer, Wilkerson v. Rahrer, 
140U. S., 545 (3'5:572).) 

The decision then goes on with great refinement of reasoning to 
analyze what the words '^ arrival in a State" mean, and goes on to 
show that if it meant at the State borders, it would nuUif v the whole 
act; but to uphold the meaning of the word '^arrival," which is nec- 
essary to support the State law as construed below, forces the conclu- 
sion that the act of Congress in question authorized State laws to 
forbid the bringing into the State at all. This follows from the fact 
that if arrival means crossing the line, then the act of crossing into 
the State would be a violation of the State law, and hence necessarily 
the operation of the law is to forbid crossing the line and to compel 
remaining beyond the same. Thus, if the construction of the word 
''arrival "be that which is claimed for it, it must be held that the 
State statute attached and operated beyond the State line confessedly 
before the time when it was intended by the act of Congress it should 
take effect. 



HEPBURN BILL. 49 

But the subtle signification of words and the niceties of verbal distinction furnish 
no safe guide for construing the act of Congress. On the contrary, it should be 
interpreted and enforced by the light of the fundamental rule of carrying out its 
purpose and object, of affording the remedy which it was intended to create, and of 
defeating the wrong which it was its purpose to frustrate. 

Undoubtedly the purpose of the act was to enable the laws of the several States to 
control the character of merchandise therein enumerated at an earlier date than would 
have been otherwise the case, but it is equally unquestionable that the act of Congress 
manifests no purpose to confer upon the States the power to give their statutes an 
extraterritorial operation so as to subject persons and property beyond their borders 
to the restraints of their laws. 

If the act of Congress be construed as reaching the contract for interstate shipment 
made in another State, the necessary effect must be to give to the laws of the several 
States extraterritorial operation, for, as held in the Bowman case, the inevitable 
consequence of allowing a State law to forbid interstate shipments of merchandise 
would be to destroy the right to contract beyond the limits of the State for such 
shipments. If the construction claimed be upheld, it would be in the power of each 
State to compel every interstate commerce train to stop before crossing its borders 
and discharge its freight, lest by crossing the line it might carry within the State 
merchandise of the character named covered by the inhibitions of a State statute. 

The court further says: 

Has the law of Iowa any extraterritorial force which does not belong to the law 
of the State of Illinois? If the law of Iowa forbids the delivery and the law of Illi- 
nois requires the transportation, which of the two shall prevail? How can the 
former make void the latter? In view of this necessary operation of the law of Iowa, 
if it be valid, the language of this court in the case of Hall v. De Cuir* 95 U. S., 485, 
488 (24:547, 548), is exactly in point. It was there said: "But we think it may 
safely be said that State legislation which seeks to impose a direct burden upon 
interstate commerce or to interfere directly with its freedom does encroach upon the 
exclusive power of Congress. The statute now under consideration, in our opinion, 
occupies that positton.*' 

Now, this Hepburn bill is introduced to get around this decision. 
I have cited this case very fully, because, unless the Supreme Court 
reverses itself or completely shuts its eyes to the real nature of this 
bill, and the inevitable practical result that it will interfere with inter- 
state commerce, it can not possibly hold it to be constitutional. To 
do so 

Mr. Thomas. Before you leave that point that you were on, I would 
like to ask you a question if it does not interrupt you. 

Mr. Chain. With a great deal of pleasure. 

Mr. Thomas. Is it your contention that Congress has no constitu- 
tional power to prohibit the transportation of intoxicating liquors 
from one State into another? 

Mr. Chain. I have not said so, because that question is not germane 
to the issue. The Supreme Court 

Mr. Thomas. I ask whether that is your contention? 

Mr. Crain. No; I am not making tnat contention now. But I am 
contending that even if Congress can interfere with interstate com- 
merce in liquor (which I by no means admit), it can not, as this bill 
does, delegate to the States the power to do so. I say that the Supreme 
Court saia, in the case of Rhoaes v. Iowa and in Vance v, Vandercook, 
that the interstate commerce never ceased until the arrival of the 
goods, i. e., until they reached the hands of the consignee. 

This bill proposes to allow the State to seize them before and after 
delivery. It proposes to stop commerce by preventing delivery. It 
proposes to enable any State to make prohibition effective by shutting 
off interstate commerce in liauor. For if the thirsty beer drinker 
can't get his glass of beer at nome and can't import it, he is pretty 
effectually prohibited. 
H B— 04 i 



50 HEPBURN BILL. 

Mr. Pearre. May I ask you a question ? 

Mr. Grain. Certainly. 

Mr. Pearre. I do not understand that this is a question of prohibi- 
tion or antiprohibition. 

Mr. Grain. In reality it is, but I am not now discussing it from 
such a standpoint. 

Mr. Pearre. I am especially interested in the legal features. 

Mr. Grain. I am trying to give them to you. 

Mr. Pearre. Do I understand you to quote anj'^ decision of the 
Supreme Court of the United States to the effect that the pending bill 
is unconstitutional? 

Mr. Grain. I say that if you read the case of Rhodes v Iowa, 
(170 U. S.) — my time is getting very limited, but if I had the time to 
read the whole case to you I would like to do so — that if you read that 
you will see that the one thought in the mind of Justice White, who 
wrote the opinion, was that the interstate commerce continued until 
the goods reached the hands of the consumer. 

Mr. Pearre. I understand that. 

Mr. Grain. And he also said in that case in exact words that the 
shipment was interstate commerce until it reached the hands of the 
consignee. .Now, if that is the case, and this bill says you can get hold 
of the goods before they reach the hands of the consignee, is the con- 
cllision not inevitable tnat the act is unconstitutional? 

Mr. Pearre. Just there, did not the court say that the protection 
of the interstate-commerce clause of the Constitution continued until 
the article came into the hands of the consignee — I understand that — 
but did not the court say that that was so under existing circum- 
stances because Congress had not acted, did it deny the power of Con- 
gress to thus affect interstate commerce in liquor? 

Mr. Grain. The Supreme Court, Mr. Pearre, did not decide in refer- 
ence to this bill because this bill had not been introduced, but I say 
that the Supreme Court said that commerce continued until it got into 
the hands of the consignee, and you could not touch it. 

Mr. Pearre. Has not the court always indicated in its opinions that 
Congress had the power to go to the fullest extent that it will under- 
take to act in this oill if this committee reports it? 

Mr. Grain. Absolutely not. The Supreme Court has gone the limit 
very often, but I believe the}'^ would stop at this bill. Let me show 
you why by calling your attention to the latest decision by the Supreme 
Court, in which the question under discussion was passed upon, which 
is the case of Vance v, Vandercook Company, decided May 9, 1898 
(170 U. S., 438), at the same time the Rhodes case was decided. This 
case establishes the following points: 

First. That "the respective States have plenary power to regulate 
the sale of intoxicating liquors within their borders, and the scope and 
extent of such regulations depend solely on the judgment of the law- 
making power of the States, provided always, they do not transcend 
the limits of State authority by invading rights which are secured by 
the Constitution of the United States, and provided further, that the 
regulations as adopted do not operate a discrimination against the 
rights of residents or citizens of other States of the Union." 

Second. That " equally well established is the proposition that the 
right to send liquors from one State into another, and the act of send- 
ing the same, is interstate commerce, the regulation whereof has been 



HEPBURN BILL. 51 

committed by the Constitution of the United States to Congress, and 
hence that a State law which denies such a right, or substantially inter- 
feres or hampers the same, is in conflict with the Constitution of the 
United States." 

Third. "That the interstate commerce clause of the Constitution . 
guarantees the right to ship merchandise from one State into another, 
and protects it until the termination of the shipment by delivery at the 
place of consignment, and this right is wholly unaffected by the act of 
Congress which allows State authority to attach to the original pack- 
age before sale but only after delivery." 

Fourth. That "the right of persons in one State to ship liquor into 
another State to a resident for nis own use is derived from the Consti- 
tution of the United States, and does not rest on the grant of the State 
law. Either the conditions attached by the State law unlawfully 
restrain the right or they do not. If they do — and we shall hereafter 
examine their contention — then they are void. If the}^ do not, then 
there is no lawful ground of complaint on the subject." 

Fifth. That " the right of the citizen of another State to avail him- 
self of interstate commerce can not be held to be subject to the 
issuing of a certificate by an oflicer of the State of South Caro- 
lina, without admitting the power of that oflicer to control the exercise 
of the right. But the right arises from the Constitution of the United 
States; it exists wholly independent of the will of either the lawmaking 
or the executive power of the State; it takes its origin outside of the 
State of South Carolina and finds its support in the Constitution of 
the United States. Whether or not it may be exercised depends 
solely upon the will of the person making the shipment, and can not 
be in aovance controlled or limited by the action of the State in any 
department of its government." 

Now, gentlemen, that is the law. And until the Supreme Court 
reverses itself this bill can not be constitutional, unless it be true as 
claimed (1) that it does not in the least interfere with shipments from 
another State; or (2) that it does not empower any State to interfere 
with the right of any one to import liquor for his own use. It assuredly 
does both these things. 

If this act becomes a valid law, there can be absolutely no question 
that if a citizen of the State of Iowa orders a case of beer from the 
State of New York, the seller in New York could not ship that case of 
beer to the citizen of Iowa for the simple reason that immediately upon 
its arrival within the boundaries of the State of Iowa "before and 
after delivery" the police power of Iowa attaches, and the temperance 
inquisitors of that State can seize the package, and if the State law 
permits it, they can destroy it; or sit in judgment on it as to whether 
it shall go to the consignee, or whether it is good for his health, his 
morals, or his hereafter. 

So that, although no State can "forbid shipment to an individual 
resident for his own use," and although Congress itself also can not do 
this, yet by this specious legislation it accomplishes indirectly what it 
can not do directly. I do not believe the courts would uphold this. 
Congress can not delegate to any State the power not only to regu- 
late commerce and to destroy it, but also to regulate individual liberty 
and to destroy it. 

Mr. Henry. Why is this any more a delegation of power than the 
Wilson Act of 1890 was? 



52 HEPBURN BILL. 

Mr. Grain. For the simple reason that the Wilson Act did not say 
that commerce had to be stopped. It said that commerce could con- 
tinue, and commerce did continue until the goods got into the hands 
of the consignee. 

Mr. Henry. But the act did not say that, did it? 

Mr. Grain. The Prohibitionists who had it passed did not think it 
said that, but the Supreme Gourt said that is what ''arrival" meant. 

Mr. Henry. The act said that commerce could continue until the 
goods got into the hands of the consignee. 

Mr. Grain. The act said 

Mr. Henry. Did it not propose simply to give the States absolute 
freedom in dealing with interstate commerce? 

Mr. Grain. That was the idea. The Wilson bill said that after the 
goods reached the State, arrived in the State, that the power of the 
State should attach. 

The Supreme Gourt said "arrival in any State" meant arrival in 
the hands of the consignee, and that arrival in the hands of the con- 
signee meant the continuation of the commerce from the time of the 
purchase and the shipment down to the time of the delivery. 

Mr. Henry. I do not want to interrupt you, but did they not say, in 
debate, that "arrival in the State" meant arrival in the boundaries of 
the State and not in the hands of the consignee? 

Mr. Grain. In debate, very likely; I thmk so. 

Mr. Henry. Was not that the intention of the act? 

Mr. Grain. Of the f ramers of the act, no doubt. If that was the 
intention I wish they had clearly expressed it, for then there would 
never have been any Wilson Bill. The Supreme Gourt would have 
knocked it into a cocked hat. 

Marshall's opinion in Gibbons v. Ogden, that " commerce among 
States" means into and not merely to the boundary of States is stifl 
law in this cx)untry, I am glad to say. It was precisely because the 
court held " arrival" to mean delivery that the act was held constitu- 
tional; had they held it to mean what, as you rightly say, it was 
intended to mean, they would have held it to be unconstitutional. The 
court says so in so many words. Read those decisions and you will 
find out that f roni the beginning to the end the courts are not willing, 
are entirely unwilling, tnat Gongress should give up its control over 
interstate commerce and delegate it to the States. 

Mr. Gillett, of Galifornia. May I ask you a question? 

Mr. Grain. With pleasure. 

Mr. Gillett, of California. The Gonstitution says that Gongress 
has the power to regulate commerce? 

Mr. Grain. Yes. 

Mr. Gillett. Do you believe that Gongress has the power to pass 
an act prohibiting interstate commerce on matters that are treated as 
subjects of legitimate commerce? 

Mr. Grain. Not at all; and I am glad you ask ^hat, for I want to 
refer to the recent opinion of Justice Harlan in the so-called Lottery- 
case. (Ghampton v. Ames, 188 U. S., 321.) 

At the last nearing before this committee counsel for the temper- 
ance people, with much bravado, proclaimed that since the Lottery- 
case decision there could be no doubt of the constitutionality of a bill 
in Gongress prohibiting any commerce in liquors. There is nothing 
in the opinion of the court warranting any such statement. 



HEPBURN BILL. 53 

The whole intent of the act upheld by this opinion was the suppres- 
sion of a nuisance and a fraud in interstate commerce traffic, which was 
being carried on through the transportation of lottery tickets through 
the means of interstate commerce. The oj)inion at page 501 cites tne 
case of Phalen v, Virginia (8 How., 163), which held " that the suppres- 
sion of nuisances injurious to the public health or morality is among 
the most important duties of government, and experience has shown 
that the common forms of gambling are comparatively innocuous when 
placed in contrast with the widespread pestilence of lotteries. The 
former are confined to a few persons and places, but the latter infests 
the whole community;" the justice further says that "in other cases 
we have adjudged that authority given by legislative enactment to 
carry on a lottery, although based upon a consideration in money, was 
not protected by the contract clause of the Constitution; this, for the 
reason that no State may bargain away its power to protect the pub- 
lic morals, nor excuse its failure to perform a public duty by saying 
that it had agreed, by legislative enactment, not to do so." 

The court further says, at page 501: 

As a State may, for the purpose of guarding the morals of its own people, forbid all 
sales of lottery tickets within its limits, so Congress, for the purpose of guarding the 
people of the United States against the ** widespread pestilence of lotteries*' and to 
protect the commerce which concerns all the States, may prohibit the carrying of 
lottery tickets from one State to another. In legislating upon the subject of the traf- 
fic in lottery tickets, as carried on through interstate commerce. Congress only sup- 
plemented the action of those States — perhaps all of them — which, for the protection 
of the public morals, prohibit the drawing of lotteries, as well as the sale or circu- 
lation of lottery tickets, within their respective limits. It said, in effect, that it would 
not permit the declared policy of the States, which sought to protect their people 
against the mischiefs of the lottery business, to be overthrown or disregarded by the 
agency of interstate commerce. We would hesitate long before adjudging that an 
evil of such appalling character, carried on through interstate commerce, can not be 
met and crushed by the only power competent to that end. 

In concluding his opinion the justice said (p. 504): 

The whole subject is too important, and the questions suggested by its considera- 
tion are too difficult of solution to justify any attempt to lay down a rule for deter- 
mining in advance the validity of every statute that may be enacted under the 
commerce clause. We decide nothing more in the present case than that lottery 
tickets are subjects of traffic among those who choose to sell or buy them; that the 
carriage of such tickets by independent carriers from one State to another is there- 
fore interstate commerce; that under its power to regulate commerce among the sev- 
eral States Congress — subject to the limitations imposed by the Constitution upon 
the exercise of the powers granted — has plenary authority over such commerce, and 
may prohibit the carriage of such tickets from State to State; and that legislation to 
that end and of that character is not inconsistent with any limitation or restriction 
imposed upon the exercise of the powers granted to Congress. 

No sane and decent person will suggest that it is necessary to stop 
the transportation of beer in order to °^ guard the morals of the peo- 
ple" or ^'to prevent widespread pestilence in lotteries," yet these were 
the causes wnich induced the Supreme Court to render its decision in 
the lottery cases, and to say that under the power of Congress to regu- 
late it had the right to stop the transportation of lottery tickets for 
the public good. 

Before Cx)ngress can prohibit, directly or indirectly, the interstate 
traffic in beer, it must first be established that beer is not a legitimate 
article of commerce; and if I had the time I should like to quote you 
some of the adjudications on this point. Even the Supreme Court will 
not forget that the brewing industry is not on a par with traffic in 



54 HEPBURN BILL. 

lottery tickets; that it has been encouraged and fostered by colonial 
and Congressional legislation since the beginning of the country; that 
it has had the special commendation of the most eminent statesmen 
from Alexander Hamilton on down as a legitimate source of official 
revenue, and that it has contributed as much to the prosperity of the 
country and to the income of the nation as any other industry. 

Mr. Powers. You have referred to the case of Gibbons. Did not 
Marshall hold in that case that the right to regulate an article of inter- 
state commerce carried with it the right to prohibit an article of 
interstate commerce? 

Mr. Grain. No, sir; he did not go that far. Gibbons and Offden, 
and Brown and Maryland, to the great credit of John Marshall, did 
not go that far, and, if he needed any monument, they would be a 
monument to his ability. 

Mr. Powers. Do you not find that he made this statement: That 
the prohibition of a single article of interstate commerce amounted to 
a regulation of interstate commerce as a whole? 

Mr. Grain. I did not catch that. 

Mr. Powers. Do you not find that Marshall said in the Ogden case 
that the prohibition of a single article of commerce might amount to 
a regulation of interstate commerce? 

Mr. Grain. That is undoubtedly so. 

Mr. Powers. Under that, may not interstate commerce be regulated 
by Gongress by the prohibition of some one article? 

Mr. Grain. Gertamly not in the sense contended for by the prohi- 
bitionists, ^t might, to this length. If they said that this article 
that they were going to regulate was a fraud or a menance to public 
health or morals. I suppose Gongress could say you could not carry 
smallpox patients from one State to another, or yellow-fever patients, 
or those kind of things. 

Mr. Powers. Have you ever seen the various bills introduced in the 
last five or six years providing for the prohibition of interstate com- 
merce in trust-made goods? 

Mr. Grain. Yes. 

Mr. Powers. What do you think of those bills? 

Mr. Grain. That is a large question. There is a difference between 
a regulation of the commerce and a prohibition of commerce. Thac 
is the whole point. Just think of the shrewdness of our prohibition 
friends. Gongress is asked to do something. Not to prohibit; oh, 
no; merely to regulate — to help the States regulate. That looks 
innocent enough. Pass the law 

Mr. Powers. I want your views. I am not expressing my opinion. 
But would you sa^^ a bill, passed by Gongress which prohibits inter- 
state commerce in sending goods manufactured by certain corpora- 
tions, known as the trusts, would be unconstitutional? 

Mr. Grain. As the laws stand to-day, I would say j^es. I would 
certainly say that Gongress can not delegate to any State the power to 
say that such goods can not cross the State border, which is the case 
here. Even in the lottery cases the court had to have it argued twice, 
and then they were a divided court, and were months and months before 
they could get together on any kind of an opinion at all. 

Mr. Henry. One more question, if you please, although I do not 
want to interrupt you. I want to get the legal effect of this act. Sup- 
pose the act is passed? 



HEPBURN BILL. 55 

Mr. Grain. The mere passage of this bill, of course, will not itself 
aflPect commerce, except in prohibition or local-option States, or in 
States having appropriate laws to take advantage or it, and the minute 
any State passes the necessary law, if it does not already have it, that 
minute the control of interstate traffic in liquor so far as that State is 
concerned passes to such State; and as diflPerent States will have dif- 
ferent laws, one legal effect will be that chaos and inequality must 
prevail. 

The control of interstate commerce was placed in Congress to pre- 
vent conflict and effect equality and uniformity. This bill at once 
destroys this. Rights guaranteed to a citizen of the United States 
and recognized by one State are denied by another. Interstate com- 
merce in liquor will be lawful under certain restrictions or to a certain 
extent in one State and under different restrictions and to a different 
extent in another State. That uniformity and equality which the law 
of the land guarantees will be destroyed, and those rights, privileges, 
and immunities as to personal liberty and property guaranteed to the 
citizens of the United States by the Constitution will be at the mercy 
of the States. 

If Congress can delegate to a State this power to regulate commerce 
by prohibiting it, of what use is the provision of the Federal Consti- 
tution as to interstate commerce? Does not Congress override the 
Constitution? Does not such action amount to a practical nullification 
of this provision of the Constitution, or at least an abdication of power 
under it? 

.Mr. Henry. What effect would it have upon the importation of 
beer into local-option precincts in States where they have not State 
prohibitory laws i 

Mr. Crain. If this bill were passed? 

Mr. Henry. Yes. 

Mr. Crain. It would depend on the State laws, but it is not prob- 
able that you could get any beer in there unless our prohibition friends 
went to sleep or lost their muskets. 

Mr. Henry. I wanted to see how far-reaching it is. 

Mr. Crain. That is it until you study it you do not grasp how tre- 
mendously far-reaching 

Mr. Brantley. Let me ask you a legal question. Suppose this bill 
becomes a law; suppose it should be declared constitutional; what 
becomes of this interstate power over the commerce of liquor in those 
States that do not see proper to enact any legislation to carry out the 
provisions of this law; does not Congress abdicate its power com- 
pletely by this bill? 

Mr. Crain. It surrenders all the power that Congress has in refer- 
ence to this and it gives to the State the right to act. Of course, if a 
State does not act — if there is no prohibition or special legislation in 
the State — then the act has no effect. 

Mr. Brantley. Then what becomes of the power; has not Congress 
parted with it? • 

Mr. Crain. It has parted with it and given it up, and that is what 
we say they can not do, and 1 challenge any lawyer in this country to 
read every decision from Gibbons and Ogden down to this case (188 
U. S. — the Lottery case, the Ames case), and you will not find one 
single expression from all of the judges that have expressed opinions 
on this question showing that they even dreamed that Congress had a 



56 HEPBURN BILL. 

right to give up their power over interstate commerce and to delegate 
it to the several States. 

Chief Justice Marshall, in Gibbons v. Ogden, said that "when a 
State proceeds to regulate commerce with foreign nations or among 
the several States it is exercising the verv power that is granted to 
Congress, and is doing the very thing which Congress is autnorized to 
do." (Judson on Taxation, p. 103.) 

Is not a sacred duty imposed upon Congress, in its control over 
interstate commerce, to safeguard the rights of the citizens of the 
several States in relation to interstate commerce, and not to be a party 
to any low scheme which seeks to destroy the individual right of any 
citizen of any State of the Union? 

Mr. Brantley. One more question. Suppose this bill passes and 
it is upheld as a constitutional law, would Congress then have left the 
power, if it ever had it, to pass a law prohibiting interstate commerce 
m liquor? 

Mr. Crain. Congress might repeal the act. 

Mr. Brantley. I mean without repealing this act! 

Mr. Crain. I doubt it. 

Just a word more in regard to the insidious simplicity of this bill. As 
1 said a moment ago, its chief fallacy is that it pretends one thing and 
does another. The measure, in the last Congress as well as in this, 
has had some support, because its real character was not understood. 
At first blush it looks, as its champion in the last Congress argued, like 
*' a proposition simply to give to the States the right of local self-gov- 
ernment, the right of a majority in any community to make their own 
laws and to enforce them." But this Hepburn bill does very much 
more than this. It delegates to the States a power denied them by 
the Constitution. It enables them to override those sacred rights and 
privileges guaranteed each citizen by the Constitution and the unwrit- 
ten law of the land. 

The laws of Iowa, let us say, make it unlawful to manufacture or 
sell beer. This law can not be enforced, say the advocates of this bill, 
because, forsooth, thirsty individuals import their beer from other 
States. Now, no State has yet had the temerity to violate the most 
fundamental principles of free government by making it a crime to take 
a drink in the privacy of a man's own home, for "they shall sit every 
man under his vine and under his fig tree and none shall make them 
afraid, for the mouth of the Lord of Hosts hath spoken it." In other 
words, the wary Prohibitionist of Iowa or Kansas says: I have pro- 
hibited the manufacturing of beer; I can't prohibit anyone from drink- 
ing it, for that would be a violation of a right for which men have 
battled from the days of Runny mede to Spions Kop. 

1 can't prevent him from getting it as long as the Congress of the 
United States controls interstate commerce and permits him to import 
it consigned to himself, but if 1 can get the Hepburn bill passed I can 
seize the goods ''before and after delivery," and then, inasmuch as he 
can't import it, and can't get it in his own State, there will be nothing 
left for nim to do but quit drinking; and presto 1 Prohibition will 
prohibit. Surely, the mere statement of this proposition is its suflS- 
cient answer. 

The very simplicity of the bill conceals its truly extraordinary and 
far-reaching character. Its passage would be the greatest invasion of 



HEPBUBN BILL. 57 

the rights of the individual ever perpetrated by any American Con- 
gress; it would bring more discord and strife into the peace and har- 
mony of the States, and stir up more bitterness and feeling among the 
people than any legislation since the fugitive-slave law; it would 
mean a loss of many millions to the brewing interests of the country; 
it would line the boundary of every temperance State with sneaks and 
smugglers; and, inasmuch as whisky can be more easily smuggled than 
beer, it would do the cause of temperance far more harm than good. 

The beer drinkers and the enormous brewing industry of the iJnited 
States do not believe that Congress is ready to pass anv bill which 
either in purport or eflPect is a prohibition measure. While the tem- 
perance sentiment in this country mav in recent years have increased, 
there can be no question that the prohibition sentiment has decreased. 
As a political issue prohibition is dead, and as a moral issue it has 
been abandoned even in the house of its friends. And this fact ought to 
be a source of much hope to the true lovers of temperence, for it means 
that if this great drink question is treated with fairness and intelligence 
instead of with bitterness and bigotry great good can be wrought. 
The beer industry is here to supply a human want, and it is here to 
stay. Its friends outnumber its enemies ten to one, and it is entitled 
to intelligent consideration and to a protection from a mistaken or 
fanatical minority. 

Prohibition has failed because it is foreign to the genius of our free 
institutions and because it has lacked a sufficiently strong ethical basis 
to insure the necessary public approval and support. Prohibition does 
not prohibit; it demoralizes. And 1 say that in its legal and practical 
consequences this bill means prohibition by act of Congress wherever 
and whenever any State desires it. In his recent work on constitu- 
tional law, Professor Tiedeman devotes a chapter to the constitution- 
ality of prohibition laws, and saj^s that in his opinion as a jurist the 
courts have not followed the law in upholding the various prohibition 
laws. I mention this merely to show that even in the courts the cause 
of prohibition is losing caste,''just as it is with the public and even with 
the reformers. 

As you know, the most complete and definitive study of the liquor 
problem ever made is that now being made by the so-called ^^Com- 
mittee of Fifty," composed of men like President Elliott, Seth Low, 
Doctor Peabody, Carroll Wright, and others, and their various reports 
are an unanswerable indictment not only of prohibition, but of modern 
temperance methods. The best temperance thought of the day has 
abandoned prohibition as a way out of Egypt. Men like Bishop Potter, 
Bishop Magee, Bishop Hall, Doctor Rainsford, Lyman Abbott, and a 
host of other temperance reformers are outspoken enemies of the pro- 
hibition propaganda. Temperance is not an emotional, nor even a 
merely moral question. It is an economic problem calling for calm 
and intelligent study with some regard for the facts. The truth, as 
Professor Atwater puts it, is that ''tempemnce reform has been sup- 
ported by false arguments until its adherents feel that those arguments 
are almost inseparable from the cause itself. If the strongest wea- 

?on against a doctrine is the truth, it is time we revise the doctrine." 
*erhaps the best expression of the highest modern thought on the 
subject I can cite is that of Lyman Abbott, as set forth in a recent 
sermon; and I surely could not phrase a better argument against this 
bill. 



58 HEPBURN BILL. 

''My objection," he says, ''to prohibitory laws is not that they can 
not be enforced, but that they ought not to be enforced. * * * 
Not even the local community has a right to determine that men shall 
not drink alcohol. * * * "Has a rural community in Maine, which 
thinks the saloon is an injury, a right to prohibit the saloon to the 
people of Bangor or Portland, who entertain a different opinion? If 
so, on what is that right based? * * * It must be based on the 
supposed right of the majority to impose their conscience on the 
minority, to determine for them what is safe and right, to act toward 
them in loco parentis; and this right of the majority to act in loco 
parentis toward the minority is fundamentally antagonistic to the 
essential principle of a democracy." 

Aside from all legal objections, this committee will consider well 
the social and economic viciousness of such a law. There is no demand 
for such legislation and no real sentiment to sustain it. This kind of 
interference with individual liberty is foreign to the spirit of our. laws 
and the genius of our civilization. 

And this surely is true. The history of civilization, as I read it, 
sums itself up in the constant struggle of the individual toward greater 
personal freedom. Liberty has not merel}'^ been a shibboleth; it has, 
consciously or unconsciously, been the very life of the races in their 
onward struggle. "To pursue one's own good in one's own way," to 
quote Mr. Mill's famous phrase, means individual liberty; to permit a 
numerical majority or minority to define the "way" or determine the 
"good" is tyranny. Perhaps it is a trifle farfetched, but I can not 
help noting that the ideal of individual freedom has been strongest 
among the drinking races, and that humanity owes its best heritages 
to them — the Greek gave us literature and art; the Roman, law; and 
the hardest drinker of them all, the Teuton, gave us that passion for 
freedom which has made the Saxon the conqueror of the world. What 
have the three great races which rejected alcohol — the Arab and the 
Hindu and the Mongolian — done to equal the work of their drinking 
rivals? 

No law could possibly be more fundamental or far-reaching or more 
antagonistic to the American ideal of individual rights than is this bill. 
The doctrine of the police power has, it is true, been carried very far 
by judicial interpretation in this country; "but broad and compre- 
hensive as is this power, it certainly can not extend to the individual 
tastes and habits of the citizen, which are confined entirely to him- 
self." (License case, 5 How., 583.) 

In former times sumptuary laws were sometimes passed * * * but the ideas 
which suggested such laws are now exploded utterly, and no one would seriously 
attempt to justify them in the present age. The right of every man to do what he 
will with his own, not interfering with the reciprocal rights of others, is accepted 
among the fundamentals of our law. (Cooley's uonsti. Limitations, 385.) 

Finally, I wish to reiterate that in considering legislation of this 
character this committee should be guided by the truth, and not by 
the sentimental hopes or the bitter fanaticism of those who abhor 
drink as they abhor the devil; or, to summarize the whole question in 
the words of the greatest living authority on the drink question, Mr. 
Gallus Thomann: 

Lawmakers should bear in mind that the use of intoxicants is not a vice, but a 
perfectly proper enjoyment of great physical, intellectual, and moral benefit to the 
individual, and of inestimable ethical and material advantage to society; that the 



HEPBURN BILL. 59 

abuse of inebriating liquors is a vice/ and that, while society is warranted in protect- 
ing itself against the effects of this abuse, the method of such nrotection should not 
in the least affect the liberty of action of the drinker, but should hold the drunkard 
responsible. * * * A very small minority drink excessively, and these, as a rule, 
are the least useful members of the community. 

The effect of State interference like this is to deprive millions and tens of millions 
of useful men of their personal liberties and of that which enhances their well-being, 
and consequently the well-being of the community, in order to rescue from the 
throes of vice a small minority of weaklings, who, in the absence of drink, would as 
naturallv succumb to any other one of the many vices and passions against which 
society finds ample protection in its penal laws. Such laws sacrifice the rights and 
well-being of the vast majority of moderate drinkers for an infinitesimally small 
minority of drunkards. * * * 

I have no comment to make on many of the statements and repre- 
sentations that have been made during this hearing, but I can not 
refrain from referring you to high ecclesiastioal opinion as to its gen- 
eral value, and I close by reading to you Bishop Potter's opinion of 
prohibitionists, published in the Outlook, March 11, 1899, as set forth 
m a letter to Lyman Abbott: 

* * * It is the old situation — as old as the religion of Jesus Christ — with the 
Scribes and Pharisees on the one hand, the Sadduces on the other, and over and 
against them the Truth. 

No more perfect reproduction of the first named has appeared in our day than the 
Prohibitionists; et id omne genus— arrogant, denunciatory, ignorant, unscrupulous, 
and untruthful; holding one meager fragment of truth to their eyes, and denying 
great and fundamental facts in human nature, in their futile and foolish endeavor to 
remedy the perversion of human instincts by extirpating them. The grotesque 
hypocrisy of the prohibition system, from Maine to Kansas, is a sufficient commentary 
upon their theories. Meantime, the endeavorers of wiser men and women to better 
the condition — the homes, the domestic life, the recreations — of their less-favored 
brethren go untouched of these, fit successors of those to whom Jesus said: *' Woe 
unto you. Scribes and Pharisees, hypocrites, for ye bind heavy burdens upon men's 
shoulders, and grievous to be borne and ye yourselves will not touch them with the 
tips of your fingers." 

I thank the committee for their attention* 

STATEMENT OF ME. WAEWIGE M. HOTiaH, OF ST. LOTJIS, MO. 

General counsel for the National Wholesale Liquor Dealers^ Association of America, an 
organization which comprises the leading distillers and wholesale dealers of the United 
States. 

Mr. Chairman and gentlemen of the committee, in endeavoring to 
accommodate everybody else who came to this hearing 1 deprived 
myself of a part of the time I expected to occupy and, as a result, in 
order to come within the limits oi the time allowed, and at the same 
time to cover the entire ground in at least a statement of the proposi- 
tion which 1 wish this committee to consider, it will be necessary for 
me to adhere very closely to the notes which I have prepared. 

Laws which are enacted under our form of Government are sup- 
posed to reflect the sentiment and opinions of the majority rej)re- 
sented b}^ the law-enacting body whetner the law -enacting body is a 
municipal assembly, a State legislature, or the National Congress, but 
no law is any stronger than the sentiment of the people of the place or 
locality to which it applies or where it is to be enforced. Where the 
prohibitory laws of a State or the police regulations of a State in 
respect to the manufacture and sale or intoxicating liquors truthfully 
reflect the sentiment of the people where such laws or regulations are 



60 HEPBURN BILL. 

to be enforced, there is never any difficulty in enforcing them; but 
where such laws and. regulations do not truthfully reflect the sentiment 
and opinions of the people amongst whom they are to be enforced 
they are seldom enforced, and in consequence fall into the inocuous 
desuetude and disrepute. 

The crusade against the manufacture and sale of intoxicating liquors 
is the outgrowth of National and State organizations which reflect the 
sentiment of less than 20 per cent of the people and the voters of the 
whole United States, though the percentage in particular localities is 
of course very much greater. 

All people believe in temperance — ^temperance in eating as well as 
in drinking, and the comparativelv insignificant number in the United 
States who erroneously believe that temperance in drinking can be 
advanced by prohibitory measures frequently secure the assistance, in 
the passage of most drastic laws, of many strong advocates of tem- 

?erance wno do not at heart believe in the principle of prohibition, 
he results indicate, however, that prohibition has been a pronounced 
failure everywhere it has been attempted, and the strong temperance 
allies have from time to' time abandoned the ultra prohibitionists to 
work out more satisfactory results through high license and strict 
regulations. 

This bill is an insidious move on the part of these ultra prohibition- 
ists to bring to their aid the strong arm of the Federal Government to 
accomplish that about the accomplishment of which the moral senti- 
ment, in localities where such prohibitory measures now apply, is 
either indifferent or not sufficiently strong to compel an enforcement 
of such laws. That this is true is apparent not only from our knowl- 
edge of the conditions as they exist in such localities, but from the 
report which was made with this bill when it was reported at the last 
Congress and the debate which occurred on the floor of the House 
when it came up for passage. 

The bill appears to have been reported at that time unanimously, 
and while I had at the first session of that Congress requested an oppor- 
tunity of being heard, if the author of the bill intended to push it, I 
am informed that it was reported without a hearing, and therefore 
practically without such a discussion as to its merits as would have 
disclosed both its real purpose and effect and its viciousness. 

While I am prepared to argue at the proper time and place that pro- 
hibition without qualification and without limitation is not only uncon- 
stitutional, but absolutely antagonistic to every principal upon which 
our Government was founded and utterly destructive of the natural 
and inherent rights of man, it is only necessary in connection with 
this discussion to say that this bill goes further than any prohibitionist 
has ever attempted to go before, individually or collectively, in enforc- 
ing his views upon temperance upon his fellow men, and, indeed, this 
view of the law was disclosed on the discussion of this measure on the 
floor of the House, wherein it was stated that the sole purpose of the 
bill was to enable the States to prohibit the carrying on of the busi- 
ness of selling. 

The report which was made with the bill in the last Congress states 
in substance that the effect of the decision of the Supreme Court in 
the case of Leisy v, Hardin (135 U. S., 100) was to deny to the States 
the right to regulate or prohibit within such States the sale of intox- 
icating liquors while they remain in the original packages; that to 



HEPBURN BILL. 61 

remove the effect of that decision the act of August 8, 1890, was 
passed, the constitutionality of which was upheld in the ca^e of In re 
Rahrer (140 U. S. , 545), but that the purpose of the law was prac- 
tically destroyed by the decision of the Supreme Court in the case of 
Rhodes v. Iowa (170 U. S., 415), under which decision the States were 
practicall}'^ "powerless either to prohibit such sales or to exercise any 
control or regulation over them," and that it was the purpose of the 
bill then reported to give the States the right to prohibit such sales in 
such States, and thus accomplish what was the original purpose of the 
act of August 8, 1890. 

In the debate on the floor of the House Mr. Clayton stated as 
follows: 

In other words, this is simply a proposition to restore to the States in this matter 
full and ample power to enforce their police'regulations against the sale of intoxi- 
cating liquors; that is the whole question. (Congressional Record, January 27, 1903, 
p. 1390.) 

In answer to a question from Mr. Bartholdt, as to whether the bill 
did not go further than that and as to whether it would not prevent 
the private citizen not engaged in selling from securing for his own 
table what he might see fit to drink, Mr. Clayton repliea: 

No, I do not think it goes to that extent; on the contrary, I am sure it does not go 
to that extent. 

In reply to a question from Mr. Kleberg as to whether the bill would 
not prevent the introduction of liquor into the State by a private 
individual, Mr. Hepburn stated: 

I think not, unless it is brought there for some illegal purpose. It is not illegal 
for the gentleman to carry liquors into the State of Iowa for his own consumption. 

And again, 

It is the illegal sale of liquor that our statute has been enacted to prohibit. 

In reply to a similar question from Mr. Bartholdt, Mr. Hepburn 
replied: 

There is certainly no provision that he may not do that, and no law of the State of 
Iowa that would prohibit him from doing that. 

Other advocates of the bill on the floor of the House spoke to the 
same purpose, from which it is clear that the view of this committee 
in reporting that bill was that the bill was designed solely to prohibit, 
or to enable the States to prohibit, the carrying on of the business of 
selling intoxicating liquors within their domain, even though they 
may remain in the original packages. 

That this was also the view of the various temperance societies advo- 
cating the passage of this bill is apparent from a reference to Senate 
Document No. 150, of the present session of Congress, which was 
printed February 8, 1904, wherein, on page 9, it says tnat the bill will — 

not prevent anyone from buying liquors wherever they are legally sold in his State 
or out of it, but only prevents liquor dealers outside of a State from invading it to 
sell "original packages" of liquors to "speak easies" by the aid of the interstate- 
commerce powers of Congress. By comparing this law with a sample of State laws 
following, it will be seen that the Hepburn bill does not prevent buying liquors for 
private use. 

And statements to similar effect were made by every speaker, as I 
recall it, since 1 have been in this room, except by Mrs. Foster, who 
frankly admitted that her purpose was to wipe out the manufacture 



62 HEPBURN BILL. 

and sale of intoxicating liquors entirely. Either she understands the 
purpose of the bill better or she is a little more honest in admitting 
its purpose. 

If we can show, therefore, that this right and this power to prohibit 
the carrying on the business of selling within the State already exist 
under the laws, and are sufficiently safe-guarded and protected, then 
we must conclude that our temperance and prohibition friends have 
been unnecessarily stampeded by the decision of the Supreme Court in 
the case of Rhodes v, Iowa, and that there is no necessity for this leg- 
islation at all, if it goes no further than its advocates claim. But if 
we can show, in addition, that the effect of this bill, if enacted into 
a law, would be to accomplish the very thing declared by all its advo- 
cates not to be the purpose of the bill, then surely this committee 
will not only feel themselves untrammelled by the action taken by this 
committee in the last Congress, but, in view of the variance between 
the avowed purposes intended to be accomplished and the effect of this 
bill, will not hesitate to reject it; and such action may all the more 
readily be taken in view of the further fact that even if the effect of 
the bill, as thus disclosed, was the hidden purpose of its promotors, 
such purpose and effect have been declared by the Supreme Court to 
be violative of the Constitution of the United States. 

Mr. Powers. Right there. Judge Hough, I would like to ask you a 
question. 

Mr. Hough. Certainly. 

Mr. Powers. There is one question in my mind that seems to me to 
be the entire pith of the question of the constitutionalty of the bill, 
and this is the question I would like to hear you upon. I suppose it 
will be conceded that the several States surrendered to the National 
Government the exclusive control over interstate commerce between 
the several States and Territories, and it is probably conceded that the 
National Government may not surrender its exclusive control over 
interstate commerce except by an amendment to the Constitution. 
Nobody has said that it is the intention to surrender to the States by 
an act of Congress exclusive control over an article of commerce, the 
control over which is vested in the National Government. 

Mr. Hough. It is an attempt to delegate a part of the power it pos- 
sesses undet that clause of the Constitution to the extent that it will 
give the States the right to regular shipments without necessarily 
involving the right to sell, and I cover that when I come to it in 
this argument, and I will be very glad to answer any further ques- 
tions on that line when I get through. But I have prepared this with 
reference to presenting this one point, and I would like to keep this 
idea in mind which I have started in upon, and would like to keep it 
continuously in the minds of the members. 

Mr. Powers. Very well. 

Mr. Hough. Now, on the first point, as to the necessity, since the only 
difference in the prohibition situation occasioned by the decision of 
the Supreme Court in the case of Leisy v. Hardin was with reference 
to the sale of intoxicating liquors in such prohibition districts in the 
original packages, it is to be assumed that such prohibition laws were 
being, prior to such decision, satisfactorily and adequately enforced 
in prohibition districts where the popular sentiment really favored 
sucn legislation; and it must be conceded that the effect of the decision 
in the case of Leisy v. Hardin was to give the importer of intoxicating 



HBPBUBN BILL. 63 

liquors the right to sell in such prohibition districts in contravention 
of the local Taws as long as the liquor remained in the original 
packages. 

The Supreme Court of the United States in the cases of Rhodes v. 
Iowa (170 U. S., 412) and Vance v. Vandercook (170 U. S., 438) has 
emphatically declared that the effect of the act of August 8, 1890, 
known as the Wilson Act, was to remove the protection which the 
interstate -commerce clause of the Federal Constitution and the failure 
of Congress to legislate thereon had thrown around original packages, 
in so far as the right to sell or carry on the business of selling in the 
prohibition districts was concerned. 

In the latter case the court says (p. 445): 

It is also certain that the settled doctrine is that *the power to ship merchandise 
from one State into another carries with it, as an incident, the right in the receiver 
of the goods to sell them in the original packages, any State regulation to the con- 
trary notwithstanding; that is to say, that the goods received by interstate commerce 
remain under the shelter of the interstate-commerce clause of the Constitution until 
by a sale in the original package they have been mingled with the general mass 
of property in the St»te. This last proposition, however, whilst genericalljr treated, 
is no longer applicable to intoxicatmg liquors, since Congress in the exercise of its 
lawful authority has recognized the power of the several States to control the inci- 
dental right of sale iii the original packages of intoxicating liquors shipped into one 
State from another, so as to enable the States to prevent the exercise by the receiver 
of the accessorv right of selling intoxicating liquors in original packages, except in 
conformity to lawful State regulations. 

In other words, by virtue of the act of Congress, the receiver of intoxicating liquors 
in one State sent from another can no longer assert a right to sell in defiance of the 
State law in the original packages, because Congress has recognized to the contrary. 
The act of Congress referred to, chapter 728, was approved August 8, 1890,. and is 
entitled **An act to limit the effect of the regulations of commerce between the sev- 
eral States and with foreign countries in certain cases." It reads as follows: (Here 
follows the act.) The scope and effect of this act of Congress have been settled in 
In re Rahrer (140 U. S., 545), and Rhodes v, Iowa ante (412) . In the first of these 
cases the constitutional power of Confess to pass the enactment in question was 
upheld, and the purpose of Congress in adopting it was declared to have been to 
allow State laws to operate on liquor shipments into one State from another, so as to 
prevent the sale in the original package m violation of State laws. 

In the second case the same view was taken of the statute, and although it was 
decided that the power of the State did not attach to the intoxicating liquors when 
in course of transit and until receipt and delivery, it was yet reiterated that the 
obvious and plain meaning of the act of Congress was to allow the State laws to 
attach to intoxicating liquors received by interstate commerce shipments before sale 
in the original package, and therefore at such a time as to prevent such sale if made 
unlawful by the State law. 

This citation and the decision in the case of Rhodes v. Iowa ought 
to clearly settle my Brst proposition. 

They at least clearly demonstrate that the effect of the Wilson Act 
was to restore the situation or the condition of things as they existed 
prior to the decision in the case Leisy v. Hardin, in so far as the right 
of a State was concerned to prohibit the sale of intoxicating liquors 
at any place within the State. This being so, it is demonstrated that 
the reasons which were given in the report of this committee at the last 
Congress as to the necessity for the proposed legislation did not in 
fact exist; they existed only in the stampeded imagination of the 
prohibitionists. 

There is no reason therefore why the prohibition laws in the various 
States of the Union should not be as vigorously enforced to-day as 
they ever were prior to the original-package decision. If they were 
not so enforced it must be due to the lack of moral sentiment behind 
those laws to stimulate which this national legislation is sought. 



64 HEPBURN BILL. 

Such being the state of the law with reference to the right to pro- 
hibit sales, it occurs to me that the real grievance of the prohibitionists 
is not against the interstate-commerce clause of the Feaei*al Constitu- 
tion or any clause of the Constitution, but against the law of " sales." 

Roughly speaking, a sale is a contract, and a contract is a meeting of 
the minds, and therefore the sale is effected at the place where the 
minds meet. 

Applying these principles of the law of sales, the United States 
circuit court of appeals of the fifth circuit decided, in the case of 
De Bary v, Souer (101 Fed. Rep., 425), that where a wholesale liquor 
firm located in the city of New Y ork received at their place of business 
orders for liquor, and accepts them there, the sale is made there and 
not elsewhere, no matter where the goods may be delivered. This 
was the case, I may state, brought against the United States involving 
the recovery of a tax paid under the internal-revenue laws which had 
been assessed for carrying on the business at another place than New 
York; and all these cases to which I am calling attention are cases 
that have arisen under the United States internal-revenue laws. The 
Department is enforcing these laws, seeking as far as possible to 
require people who are carrying on the business of selling to pay the 
special tax to the Government for carrying on such business. 

To the same effect is the judgment of the United States circuit court 
of appeals for the ninth circuit in the case of United States v. Cheval- 
lier, 107 Fed., 434, wherein it was held that where a wholesale liquor 
dealer located in San Francisco receives orders from his traveling sales- 
man in Oregon which are accepted and filled at the place of business 
in San Francisco the sale is made and the liquor is sold in San Fran- 
cisco and not in Oregon. 

To tlie same effect is the judgment of the United States court in 
Iowa in the very case referred to in the argument on the floor of the 
House by Judge Smith in the last Congress. 

The liability for the special tax unaer the United States internal- 
revenue laws is for carrying on the business of selling, and it has been 
held under those laws that making a single sale incurs the liability. 
(See Ledbetter v. U. S., 170 U. S., 606.) 

The case in question is that of the United States v. Adams Express 
Company (119 Fed., 240). 

In this case the Adams Express Company was indicted in Iowa under 
the United States internal- revenue law for carrying on the business 
of selling liquor without having paid the special tex on account of 
carrying what is known as a C. O. D. shipment from Dallas, 111., to 
Birmingham, Iowa. The court in that case held that the interstate-com- 
merce clause of the Constitution was not involved, and the only ques- 
tion was whether the defendant by carrying such a shipment and 
receiving the purchase price had sold the liquors. 

The decision of the court was that the sale had been made by the 
party who delivered the shipment to the express company in Illinois, 
and that that conclusion of the court was in perfect harmony with the 
decisions of the supreme court of Iowa itself, stating the law of ' ' sales. " 

In other words, it holds that the general principles as to the place 
where a sale is made are not affected by the fact that the payment is 
to be in cash when delivered. 

To the same effect is the judgment of the United States court in 



HEPBUBN BILL. 65 

Kentucky in the case of United States v. Parker (121 Fed., 596), which 
was also a case of C. O. D. shipment. 

And, finallj% to the same effect is the very recent decision of the 
Supreme Court of the United States in the case of Norfolk and West- 
ern R. R. Co. V. Sims, decided December 7, 19Q3, and reported in No. 
4 of the advance sheets of the October term, January 15, 1904. 

In that case the Supreme Court says: 

A sale really consists of two separate and distinct elements. First, a contract of sale 
which is complete when the offer is' made and accepted; and second, a delivery of 
the property which may precede, be accompanied by, or followed by the payment 
of the price as may have been agreed upon between the parties. The substance of 
the sale is the agreement to sell and its acceptance. 

And though the shipment was a C. O. D. shipment, the court held 
that the sale was made where the order was received and accepted. 

Such transactions as are referred to in these authorities can not 
oflfend against the police regulations of any State which are limited to 
prohibiting the selling or the carrying on of the business of selling 
intoxicating liquors in such State, and no State legislation can have 
any effect upon or control such a transaction unless the State legislation 
can be given extraterritorial force and effect, and any State law 
which attempts this, with or without the aid of Federal legislation,- 
necessarily abandons the legitimate domain of the police power and 
enters the realm of interstate-commerce regulations. (Rhodes v, 
Iowa, supra.) 

This is an impossible feat, for three reasons; and this brings us to 
my second position: 

First. No State law can possibly have any greater extraterritorial 
force than any other State law, and therefore if the law of one State 
should forbid a thing to be done beyond its territorial limits which 
under the laws of a sister State could or should be done, an irrecon- 
cilable conflict instantly arises. 

As was said in the case of Bowman v. C. and N. W. Ry. (125 U. S., 
465): 

In the present case the defendant is sued as a common carrier in the State of Illi- 
nois, and the breach of duty alleged against it is a violation of the law of that State 
in refusing to receive and transport goods which, as a common carrier, bv that law 
it was bound to accept and carry. It interposes as a defense a law of the State of 
Iowa which forbids the delivery of such goods within that State. Has the law of 
Iowa any extraterritorial force which does not belong to the law of the State of Illi- 
nois? If the law of Iowa forbids the deliverv and the law of Illinois requires the 
transportation, which of the two shall prevail? How can the former make void the 
latter? 

Second. Independent of this irreconcilable conflict it would amount 
to regulating interstate commerce on the part of the State over and 
above the enforcement of any police regulation. This the State can 
not do, nor can such power be del^ated by Congress. 

As was said in the case of In re Rahrer (140 U.S., 560) — 

It does not admit of argument that Congress can neither delegate its own powers 
nor enlarge those of a State. 

And third, because it would have the eflPect of abridging the personal 
right guaranteed by the Constitution itself of bringing into a State 
wines or liquors for one's own use. 

In the case of Vance v. Vandercook (170 U. S., 438) the Supreme 
Court, in holding that part of the South Carolina dispensary law uncon- 

H B— 04 5 



66 HEPBURN BILL. 

Btitutional which interfered with the right of a citizen to shij) into the 
State for his own use and in holding the rest of the law constitutional, 
said, discussing the rest of the law: 

But the weight of the contention is overcome when it is considered that the inter- 
state-commerce clause of the Constitution guarantees the right to ship merchandise 
from one State to another and protects it until the termination of the shipment by 
delivery at the place of consignment, and this right is wholly unaffected by the act 
of Congress which does not allow State authority to attach to the original package 
before sale, but only after delivery. 

Scott V. Donald, supra; Rhodes v, Iowa, supra: It follows that under the Constitu- 
tion of the United States every resident of South Carolina is free to receive for his 
own use liquor from other States, and that the inhibitions of a State statute do 
not operate to prevent liquors from other States from being shipped into such State 
on the order of a resident for his use. This demonstrates the unsoundness of the 
contention that if State agents are the only ones authorized to buy liquor for sale in a 
State, and they select the liquor to be sold from particular States, the products of 
other States will be excluded. They can not be excluded if they are free to come in 
for the use of any resident of South Cfarolina who may elect to order them for his use. 

The products of other States will be, of course, excluded from sale in the original 
packages in the State, but as the right of the State to prevent the sale in original 
packages of intoxicants coming from other States, in consequence of the State law 
forbidding the sale of any but certain liquor, attaches to the original packa^ires from 
other States by virtue of the act of Congress, the inability to make such sales arises 
from a lawful State enactment. To hold the law unconstitutional because it pre- 
vents such sales in the ori^nal package would be to decide that the State law was 
unconstitutional because it exerted a power which the State had a lawful right to 
exercise. Indeed, the law of the State here under review does not purport to forbid 
the shipment into the State from other States of mtoxicating liquors for the use of a 
resident, and if it did so it would upon principle, and under the ruling in Scott v. 
DonsAdj to that extent be in conflict with the Constitution of the UniteS States. 

It is argued that the foregoing considerations are inapplicable, since the State law 
now before us, while it recognizes the right of residents of other States to ship liquor 
into South Carolina for the use of residents therein, attaches to the exercise of that 
right such restrictions as virtually destroy it. 

But the right of persons in one State to ship liquor into another State to a resident 
for his own use is derived from the Constitution of the United States, and does not 
rest upon the grant of the State law. Either the conditions attached by the State 
law unlawfully restrain the right or they do not. If they do— and we shall hereafter 
examine this contention — then they are void. If they do not, then there is no law- 
ful ground of complaint on the subject. 

It further appears that the right to ship for private use was condi- 
tioned upon obtaining a certificate from a chemist, and the court held 
that this was an unlawful restriction upon this constitutional right to 
ship for private use, and therefore void. 

But it IS worthy of note that the holding of the balance of the dis- 
pensary law of South Carolina constitutional hinged upon the propo- 
sition that the right to make an interstate shipment for personal use 
was founded in tne Constitution and not upon any legislative grant. 
Had it been otherwise, the lo^ic of the opinion is that the entire law 
would have been held unconstitutional. 

Now, we have already seen that so far as the right and the power 
to prohibit sales of intoxicating liquors in prohibited districts is con- 
cerned the present laws are not only ample, but are precisely what 
they were before the alarming original pacfeage decision was rendered, 
and furthermore, that they are all sufficient to accomplish the pur- 
poses alleged to be accomplished by this bill. There is therefore no 
necessity for this law. 

It only remains for us to see whether the proposed law goes beyond 
those purposes and falls within the condemnation of the authorities 
cited. 



HBPBUBN BILL. 67 

Under the construction of the law in the case of Rhodes v, Iowa a 
citizen of Iowa is entitled to receive an interstate shipment of liquor, 
and the police power of the State can not touch it before it is delivered 
to him. If he nas ordered it for his own use he can consume it, but 
if he has ordered it to sell a State law is violated when he sells, and 
it only remains for the local authorities to enforce the law against him 
for so selling. 

This natural and reasonable distinction between the right of an indi- 
vidual to receive for his own use and the power of the State to punish 
him if he sells, even though in the original package, thus establishing 
a clear line of demarcation between legitimate police regulations and 
the regulations of interstate commerce, is brought about bv the con- 
struction given the Wilson Act by the Supreme Court, wherein the 
words "upon arrival in such States" are declared to mean ''arrival at 
the point of destination and delivery there to the consignee." 

The proposed law not only inserts the words ''before and after 
delivery" in the present Wilson law, but adds a second section, which 
in express terms asks that the nonresident shipper and the nonresident 
common carrier engaged in interstate commerce shall be amenable to 
the police regulations of the State into which shipments of liquor are 
made. 

It would be hard to conceive of more vicious legislation, because 
not only does it propose to produce that irreconcilable conflict between 
State laws, but it proposes to submit interstate shipments to State 
control without necessarily touching upon the right to sell, the uncon- 
stitutionality of which needs no argument to demonstrate. 

In the case of Rhodes v. Iowa, page 426, the court says: 

We think that, interpreting the statute by the light of all its provisions, it was not 
intended to, and did not, cause the power of the State to attach to an interstate ship- 
ment while the merchandise was in transit under such shipment and until ite arrival 
at the point of destination and delivery thereto to the consignee, and of Course this 
conclusion renders it entirely unnecessary to consider whether, if the act of Congress 
had submitted the right to make interstate-commerce shipments subject to State con- 
trol, it would be repugnant to the Constitution. 

This is to indicate clearly that an act of Congress purporting to sub- 
mit such shipments to State control before delivery would be submit- 
ting the right to make interstate commerce shipments subject to State 
control; but more than this, if the right is given to subject such ship- 
ment to State control before delivery, how are the rights of the indi- 
vidual who may ship for his own use protected? 

It is alleged by its advocates that this bill would not interfere with 
such right. 

A present law of Iowa, and one which was under discussion in the 
case of Rhodes v. Iowa, is as follows: 

If any express company, railway company, or any agent or person in the employ 
of any express company, or of any common carrier, or any person in the employ of 
any common carrier, or if any other person shall transport or convey between points, 
or from one place to another within this State, for any other person or persons or 
corijoration any intoxicating liquors, without having first been furnished with a 
certificate from and under the seal of the county auditor of the county to which said 
liquor is to be transported or is consigned for* transportation, or within which it is 
to be convejred from place to place, certifying that the consignee or person to whom 
said liquor is to be transported, conveyed, or delivered is authorized to sell such 
intoxicating liquors in such county, such company, corporation, or person so offend- 
ing, and each of them, and any agent of said company, corporation, or person so 
offending shall, upon conviction thereof, be fined in the sum of $100 for each offense. 



68 HEPBURN BILL. 

and pay costs of prosecution, and the costs shall include a reasonable attorney fee, to 
be assessed by the court, which shall be paid into the county fund, and stand com- 
mitted to the county jail until such fine and costs of prosecution are paid. 

The offense herein defined shall be held to be complete, and shall oe held to have 
been committed in any county of the State througn or to which said intoxicating 
liquors are transported, or in which the same is unloaded for transportation, or in 
which said liquors are conveyed from place to place or delivered. It shall be the 
duty of the several county auditors of the State to issue the certificate herein con- 
templated to any person having such permit, and the certificate so issued shall be 
truly dated when issued, and shall specify the date at which the permit expires, as 
shown by the county records: Provided, however, That the defendant may show as 
a defense hereunder, by pieponderance of evidence, that the character and circum- 
stances of the shipment and its contents were unknown to him. 

This law makes no distinction between a shipment to a person for 
his own use and a shipment to a person who intends to sell the liquor 
after he receives it. It makes every shipment absolutely unlavrtul 
unless the shipment is accompanied by a certificate issued by the proper 
State officer to the effect that the consignee is authorized to sell. If 
the consignee is ordering for his own use, he does not want to sell, and 
could not get the certificate. 

It is clear, therefore, that the proposed legislation, in connection 
with possible State legislation, not only goes much further than the 
alleged purpose of its advocates, but as legislation it would be more 
objectionable than that under consideration in the case of Vander v. 
Vandercook. 

In that case, while the right of the individual was restricted, it was 
possible to obtain a certificate under which a shipment could be obtained 
for private use. Under the proposed combination of laws it would be 
absolutely impossible. And yet, notwithstanding such impossibility 
in the case of the South Carolina law, the court held that there could 
be absolutely no restriction upon the right to ship for private use, 
.because such right rested on the Constitution. Mark you, "on the 
Constitution," and not on legislative enactment, and of course that 
covers Congressional as well as State enactments. That which is 
founded on the Constitution can not be abridged by an act of Congress. 

In view therefore of the premises from which there seems no escape 
from the conclusions that tnere exists no such necessity for this legis- 
lation to accomplish only what this is alleged to accomplish, as was 
thought to exist at the time this bill was reported from the committee 
in the last Congress, and that even if it were not constitutional that 
the bill goes much further than was alleged to be its purpose, I ask 
this committee, How can you be expected to favor it? 

It seems to me that the gentlemen of this committee should say to 
these reformers: Go first to the State and pass a law against drinking, 
and when you have done that, then come and ask Congress to help you 
enforce such a provision; because no matter from what standpoint 
you approach this question, no matter from what point of view you 
discuss it, it always resolves itself in the end to the question, *' Shall 
you prohibit the right of the individual to consume or drink what he 
sees fit?" 

Mr. LiTTLEFiELD. On that precise point, as to the element of per- 
sonal use, you are aware of the fact that the proposed bill does not in 
that respect differ from the existing law; that is to say, the law as it 
now stands? 

Mr. Claytojs. The Wilson law. 



HEPBUBN BILL. 69 

Mr. LiTTLEFiELD. Yes; the Wilson law. "Or remaininff therein 
for use and consumption or sale." That is the language that takes 
care of the question presented to us. That is now in the Wilson bill. 
What would you say about that? 

Mr. Hough. 1 say that in connection with the law of Iowa, which 
this is designed to supplement, it could not get there for use or any- 
thing else, because the man who is going to use it can not get the cer- 
tificate under the law of Iowa. 

Mr. LiTTLEFiELD. But take the general constitutional features of 
the law as it stands to-day. That evidently applies to the original 
package after delivery beyond all question, ''remaining therein for 
use, consumption, ancl sale." So all the consequences you have in 
mind are absolutely now involved under existing conditions. 

Mr. Hough. Then the words ''before or after delivery" are not 
necessary ? 

Mr. LiTTLEFiELD. Oh, no; the words "before or after delivery" 
simply allow the State jurisdiction to attach before it now attaches. 
The original package is simply one of the elements of interstate com- 
merce, the courts have held. Instead of attaching to that element as 
at present the pending bill allows the State authority to attach earlier, 
at a different stage of interstate commerce. But the language you 
have been criticising — I heard the last part of your argument and I 
have been very much interested in it — involving the element of per- 
sonal use, is already a part of the law and the proposed statute does not 
change it. 

Mr. Hough. The protection, I gather from your remarks, you seem 
to think is afforded this kind of a case 1 have been discussing could 
not possibly apply until after the goods get there; but if you give the 
State a right to stop them at the State line they never could get there. 
So those provisions could never have any force or application. 

Mr. LiTTLEFiELD. They do have now. 

Mr. Hough. Yes; but though you do not change the law, as I stated 
in the beginning, you have already restored the condition of things 
just as it was before this decision in Leisy v. Hardin was handed down 
by the Supreme Court, which was stated to be the necessity for the 
proposed law. 

Now, I say that the distinction that was drawn between the right to 
prohibit the sale in the original package and the right to prohibit the 
shipment was the only thing — I state that as my opinion as a law- 
yer — which saved the constitutionality of the Wilson law; because the 
court said in the Rhodes case, as plainly as it is possible to say any- 
thing in that way, that if the Wilson law meant "before delivery" it 
would have had the effect of submitting the question of regulating an 
interstate shipment to a State. It does not say what it would have 
decided if they had felt compelled to give it that construction; but we 
not need to be told what they would have decided, because in the cases 
I have cited it is said that no part of the power could be delegated, 
and that would be delegating a part of the interstate-commerce power 
to the States. 

Mr. LiTTLEFiELD. Had not the court prior to the Rhodes case held 
that the original package was a part of interstate commerce? 

Mr. Hough. I have covered that. They said it was an incident to 
interstate commerce. 



70 HEPBURN BILL. 

Mr. LiTTLEFiELD. Whether it was incident or not, had they not held 
in so many words that it was a part of interstate commerce and a nec- 
essary incident? 

Mr. Hough. In the License cases (6th Howard) it was held that not- 
withstanding they were in the original package, they were subject to 
State legislation as soon as they arrived within the State, and that 
continued to be the law of this country for about fifty years. When 
the case of Leisy v. Hardin was handed down, following the logic of 
the opinion in the Bowman v. Railroad case (and of course when they 
had tnat before them they could not escape from the conclusion), they 
reversed the case of Pierce v. New Hampshire and held that the right 
to ship carried with it of necessity the right to dispose of the thing in 
the original package. 

Mr. LiTTLEFiELD. But did not that decision hold tliat the original 
package was a necessary part of interstate commerce? 

Mr. Hough. The original package; yes. 

Mr. LiTTLEFiELD. Has that been overruled? 

Mr. Hough. It has in the case of Rhodes v. Iowa. 

Mr. LiTTLEFiELD. That part has been overruled, you say ? 

Mr. Hough. In Rhodes v. Iowa they overruled it to the extent of 
saying that it is not an inalienable incident. They have said now that 
it is an alienable incident, and they can draw the distinction between 
the right of the State to enforce a police regulation and the ri^ht of a 
State to regulate an interstate commerce shipment, and that fane dis- 
tinction can be drawn by saying that the State laws can attach ''after 
delivery to the consignee," but not before delivery to the consignee, 
and that if vou attempt to attach the State laws by legislative enact- 
ment to a shipment ot that kind before delivery you are unquestion- 
ably giving the State the right to regulate interstate commerce ship- 
ments to that extent. That is a fine distinction, I will admit. 

Mr. LiTTLEFiELD. Is it your conception of the cases, Rhodes v. 
Iowa and the Dispensary case, that the court there held that the States 
can not exercise their police power in connection with the matter of 
transportation ? 

Mr. Hough. Only as it may be an inspection measure. 

Mr. LiTTLEFiELD. In Rhodes v, Iowa did not they expressly decline 
to so hold, and is it not a fact that all they did hold was that the stat- 
ute in controversy did not apply to transportation in that specific 
sense? 

Mr. Hough. I say that construction that was given by the Supreme 
Court was the only thing that saved the constitutionality of the W ilson 
act. If they had given it the other construction they say, as clearly as 
it was possible for them to intimate anything, that they would have 
held it unconstitutional as being a delegation of a part of the power 
which rests exclusively in Congress. 

Mr. LiTTLEFiELD. Do you go so far as to say that there is anything 
in the opinion which states that they would have held that to be uncon- 
stitutional ? 

Mr. Hough. I did not say that. I say they did not say whether, if 
they had had to give it that construction, they would have held it 
unconstitutional; but I say that as lawyers we do not have to be told 
that, though the Supreme Court did say it in the Rahrer case. They 
say if they had given it a different construction it would have amounted 
to delegating to the States the power to regulate an interstate ship- 



HEPBURN BILL. 71 

ment. They say that in the case of Rhodes v, Iowa, and if they go 
that far we need not ask them how much further they would go in 
view of the decision in the Bahrer case. 

Mr. LiTTLEFiBLD. I wish you would put in the language in the 
Rhodes case where they say that the original package is an inalienable 
incident. 

Mr. Hough. They did not say that. I was giving my construction 
of the effect of the various decisions of the Supreme Court on this 
subject, and I say there was that distinction drawn which you may say 
is a fine distinction, in view of what they said in Leisy v. Hardin. 
That distinction was the only thing that saved the constitutionalitj'^ of 
the act, however. 

Mr. Crain. I would like to quote that language: 

It is enough to say 

The Chairman. We have gone over that very thoroughly and we 
can not get into a discussion. 

Mr. LiTTLEFiELD. Let me see that. 

(Mr. Crain handed a law book to Mr. Littlefield, pointing out the 
passage which Mr. Crain had just started to read aloud.) 

Mr. Hough. Are there any further questions which the committee 
would like to ask me? 

Mr. Clayton. There are no further questions 1 care to ask. 

(Thereupon at 12.30 the committee took a recess until 2.30 
o'clock p. m.) 

AFTER RECESS. 

The committee reassembled pursuant to the taking of recess, at 2.40 
o'clock p. m. 

Hon. John J. Jenkins in the chair. 

Mr. DiNWiDDiE. Mr. Chairman and gentleman of the committee, I 
should like to introduce a gentleman that needs no introduction, Mr. 
Smith, of Iowa. 

STATEMENT OF HON. WALTER I. SMITH, A EEFEESENTATIVE IN 
CONOEESS FROM THE STATE OF IOWA. 

Mr. Chairman and gentlemen of the committee, I had the pleasure 
this morning of listening for a considerable time to the very learned 
argurnent of Mr. Hough, of St. Louis, in opposition to this bill. 
Before I proceed to offer •a few suggestions as to the bill itself I want 
to suggest, first, that the gentleman failed to draw any distinction 
between an act of the legislature which proposed to operate outside of 
the territory of the State and an act of the legislature which attempted 
to act within the territory of the State upon the subject of interstate 
commerce. 

The statute to which he refers in my State, providing for permits 
being furnished to transportation companies before they accept ship- 
ments, was not intended and does not by any fair construction j)rovide 
that a transportation company without the State must take no shipment 
except under those circumstances. It has never been the opinion of 
the people of Iowa that the legislature of Iowa can pass laws as to what 
should oe done outside the State. We have never supposed that we 
could pass a law that a transportation company in Illinois had to have 



72 HEPBURN BILL. 

certain evidence before it was justified in accepting a shipment into 
our Commonwealth. 

I trust that I have made myself plain as to the distinction between a 
State enactment which proposes to directly control action without the 
State and a State enactment which is proposed to operate upon prop- 
erty within the State, but which may or may not be the subject of 
interstate commerce. I say this because I think it proper to here 
declare that there is not upon the statute books of Iowa and there 
never has been upon the law books of our State any law which pro- 
hibited any man from having licjuors in his own possession for his own 
use, or from importing them into the State for that purpose, and if 
this law is passed it will have no such effect as contended for by Mr. 
Hough, because of the fact that there is no law of Iowa which would 
prohibit a man having liquors in his own possession for his use or 
importing them directly for his own use and benefit. 

What is it that is thought to be reached by this bill? We have a 
law in Iowa which prohibits the keeping of intoxicating liquors for 
sale within that Stete. Up to the time that the case of Leisy v, 
Hardin was decided it was never dreamed in our State that there was 
any right to sell intoxicating liquors in a State simply because they 
were still in the original packages in which they were imported into 
the State. That decision came as a great surprise to our people. It 
is conceded by Mr. Hough that it was an overruling of fifty years' 
authority in the Supreme Court of the United States itself. When 
that announcement came as a surprise to the people of my State they 
discovered that everywhere against the will of the people in a partic- 
ular locality men were establishing original package houses and there 
conducting this traffic without taxation, without any restriction, retail- 
ing liquors everywhere. 

They came to Congress, and it may not be an unnecessary delay of 
these proceedings to say that after the Senate had passed the so-called 
Wilson bill and it came to this House, this committee reported a sub- 
stitute for the Wilson bill, which in mv judgment ought to have 
become the law, a bill which eliminated the whole question of intoxi- 
cating liquors from the subject-matter of it, and provided that all 
commodities of every kind and nature after they arrived in a State 
should be subject to the police powers of the State. When that bill 
was brought out of this committee it passed the House, but the Senate 
refused to concur in it, and it was necessary for the House to accept 
the Senate bill. 

From that day until the decision in the State v. Rhodes there was no 
trouble with this question anywhere. It was supposed bj^ everybody 
everywhere that the Wilson bill authorized the communities to regu- 
late their domestic affairs according to their own will and pleasure so 
far as the sale of intoxicating liquors was concerned. When the 
Rhodes case was decided no serious harm was done bv the rule there 
laid down as applied to the facts of that case. But this decision was 
a revelation to men who wanted to defy the public sentiment and the 
will of local communities everywhere, and they devised numerous 
schemes, coming within the ruling of the Rhodes case, by which liquors 
might be generally retailed in dry communities. 

It is not my purpose to review those methods at length to you, but 
I spoke of some of them in the House a year ago, and the committee 



HEPBURN BILL. 73 

I doubt not has heard of the uses and the abuses to which the Rhodes 
ease has been put. With all due deference to the majority of the 
Supreme Court, the Rhodes case, in my judgment, declares contrary 
to the true intent and meaning of th^ Wilson bill, that liquors have 
not arrived in the State until Siev reach their destination — and with 
that I have no complaint — but ''until they are delivered to the con- 
signee." In m}^ judgment delivery to the consignee is no part of the 
arrival of liquors anywhere. 

But that decision enabled the liquor dealers who wished to defy the 
local sentiment to ship liquors to themselves, or to ship them to 
fictitious persons, or to ship them to X, Y, or Z, and the liquors, 
although held in the State solely for sale, and being the very class of 
liquors that the Wilson bill clearly sought to subject to the State laws, 
could there be held and protected under this decision against the 
enforcement of the State laws and sold in defiance of them if sold 
before delivery, and if the consignor was consignee he had no difficulty 
in delaying delivery until he had the goods sold. 

There never was any delivery until the goods were sold. 

That was not the purpose. The purpose was to keep them in the 
express office until thev could be sold. And so a stock was piled up 
in these communities, there to be sold in defiance of State law, because 
under the decision in the Rhodes case the}' were entitled to protection 
until delivery to the consignee. 

I may say that, in my judgment, with proper judicial interpretation 
some of these evils might have been avoided. I know it was at one 
time the rule in some of the district courts of Iowa that, where there 
was no intention that the goods should ever be delivered to the con- 
signee, but that the bill of lading should be transferred to some per- 
son, that decision of the Rhodes case should not apply, and the liquors 
were destroyed. 

Mr. GiLLETT. of California. How many years ago? 

Mr. Smith. Some years ago. I think now that this is a palpable 
evasion of the Wilson law, and that where liquors are sent with no 
intent that the consignee shall be the consumer they are subject 
to the police regulations of the State, and I trust when the question 
comes before the Supreme Court of the United States, if it does, that 
the Supreme Court will so hold. It is perfectly manifest that these 
liquors that are thus shipped to fictitious parties, or shipped to the 
consignor for sale in the otate, are the very liquors that the Wilson 
bill was enacted to reach. There is nobody that will question that, 
and vet this construction in the Rhodes case makes it impossible to 
reacn those liquors if they are sold before delivery to the consignee. 

This bill does not attempt to do a solitary thing that was not the 
settled purpose of Congress to do in the passage of the Wilson bill. 
It simply seeks to stop, not the importation for personal consumption, 
but the sale of the liquors by this device, which is based upon the 
decision in the Rhodes case. 

This is not a prohibition measure; it is not a temperance measure. 
It is simply and solely a bill to restore local self-government upon this 
subject to the several communities of the United States. It will 
scarcely be claimed by anyone that the framers of the Constitution, 
when they conferred upon Congress power to regulate commerce 
between the several States and with foreign nations, dreamed that that 



74 HEPBURN BILL. 

was a provision under which by refined construction every business 
deemed by a State injurious to public health or the public welfare 
could be imposed upon every community in that State. And yet, if 

iron say you will not permit the States to enforce their laws a^inst 
iquors imported, not for consumption by the importer, but imported 
for the purpose of sale within the State, that is a result of this pro- 
vision of the Constitution. 

Mr. Alexander. Under this bill would not liquors be stopped at 
the border of Iowa? 

Mr. Smith. They certainly would not and could not be unless they 
were imported for sale, because there is no law of Iowa, and never 
has been any law of Iowa, which made liquors contraband, and unless 
they were kept for sale within the State 

Mr. Powers. And upon whom would be the burden of proof as to 
the purpose for which the liquors were sent into the State — ^the State 
authorities or would it be the consignee? 

Mr. Smith. I want to be frank. I am of the impression that there 
is a provision of the Iowa code that liquors not in a dwelling house or 
some place of like character are presumed in the first instance to have 
been kept for sale, but that is a mere turning of the burden of proof. 
1 have not examined that statute with this in mind, but I have that 
impression in mind. 

Mr. Powers. Would that presumption apply to goods in transit? 

Mr. Smith. I would not want to answer that question because I do 
not feel certain enough whether I would be right. My impression is 
that the statement is worded something like this: That intoxicating 
liquors in any place except a [jrivate dwelling, or some place like that, 
shall be presumed in the first instance to be kept for sale. 

Mr. Littlefield. Of course that is the rebuttal presumption. 

Mr. Smith. Yes. It simply shifts the burden of proof at the most. 

Mr. Gillett, of California. If Iowa has the law can not Iowa stop 
liquors for personal use at the border? 

Mr. Smith. I do not think it could under this law, and it seems to 
me that is purely an academic question, as no State in this Union has 
ever attempted to say a man should, not drink or have liquors for his 
own use. 

Mr. Gillett, of California. In construing this have we not the right 
to take into consideration every conceivable law that a State has a right 
to pass? 

Mr. Smith. I presume that in construing it you have the right to 
imagine all the laws that could possibly be devised that might be fol- 
lowed under it. 

Mr. Pearre. That would raise a question of constitutionality which 
would be decided in the court? 

Mr. Smith. Yes. 

Mr. Powers. Returning to the question of presumption, suppose I 
should in the goodness of my heart ship you a case of whisky from 
Massachusetts; the authorities of Iowa would have the right under the 
provision of this law to make a seizure of that under your present 
statute law ? 

Mr. Smith. They would have a right to seize it upon the sworn state- 
ment being filed that those liquors were there and held for sale in 
violation of the laws of Iowa. That is the only circumstance, and if 



HEPBURN BILL. 75 

you send it to me for my own consumption that would be a falsehood, 
and I have not any presumption that any good citizen of Iowa would 
make that false affidavit, and if anyone did he could not prove it. 

Mr. Powers. Do you think the courts would take judicial notice? 

Mr. Smith. I do not think they would, but I am perfectly certain 
that those liquors would not be condemned and you are safe in send- 
ing them. 

Mr. LiTTLEFiELD. The affidavit would necessarily have to be made 
after the liquor arrived? 

Mr, Smith. Yes. 

One other matter I want to call to the attention of the committee 
particularly, and that is while Mr. Hough cited cases of C. O. D. ship- 
ments to show the sale took place at the place of consignment and not 
at the destination of the goods, and on that cited the opinion of Judge 
McPherson, a former member of this House, who was judge of the 
southern district of Iowa, yet he, through ignorance of the fact, failed 
to call attention to the fact that the supreme court of Iowa, by unani- 
mous decision, has decided otherwise. The supreme court has unani- 
mously held that where goods are shipped into our State C. O. D. for 
the cost price that that constitutes a sale within the State of Iowa and 
not a sale, within the foreign jurisdiction. And notwithstanding the 
dissenting opinion of my distinguished friend and former member of 
this House sitting nisi prius, that is there the law of the land. 

Mr. Henry. What case? 

Mr. Smith. I can not state it. It is a very recent case and has 
attracted great attention in my State, but I can not state it from 
memory. 

Mr. Henry. The Supreme Court of the United States? 

Mr. Smith. Of Iowa. The supreme court of Iowa has held that, and 
so these shipments to these various parties are illegal in the State. 

Mr. Littlefield. And are sales in the State of Iowa? 

Mr. Smith. Are sales in the State of Iowa. 

We can not do anything to protects oureelves against them, because 
under the decision in Rhodes v. Iowa these liquors are the subject of 
interstate commerce until after delivery to the consignee. 

In the town where Colonel Hepburn lives, at a time when I had the 
honor of presiding on the bench of that district, the express companies' 
agents refused to carry on this traffic under the system they had 
devised, that system being to ship 100 jugs to X at Coronada, and 
send a letter to the express agent to deliver them to anybody that 
would pay the C. O. D. charges. 

Mr. Pearre. X representing the unknown quantity? 

Mr. Smith. Yes. 

Mr. Gillett, of California. What we want to do is to eliminate X. 

Mr. Smith. When the agent of the express companj^ refused to do 
that, the express company removed him from his office as agent to 
that town and appointed a more pliable agent, and thereupon the 
grand jury indicted the new agent and he went to jail, and then the 
express company consented to restore the man who would not carry 
on this traffic in defiance of the laws of the State. 

The supreme court of Iowa enjoined these express companies because 
of this identical method I have stated to you. They were defying the 
laws. I am not here to assail express companies, but it does seem to 



76 HEPBUBN BILL. 

US that great express companies are in small business when they put 
an agent in a town with a view only to the fact that he is willing to 
retail intoxicating liquors over the desk of the express company as a 
bar, without even paying the mulct tax imposed by our State upon the 
sale of intoxicating liquors. 

Unless this committee says now that the Government of the United 
States ought to impose such conditions upon us, this bill, or substan- 
tially this bill, oujglit to be reported. 

We are not asking the United States to pass any laws governing our 
people. We are not asking you to even delegate any power to our 
State, as contended this morning. I am not here as a lawyer to con- 
tend that the Congress of the United States can delegate its powers to 
the State or that it can enlarge the powers of the State. I am here 
contending that the Congress of the United States, having discovered 
from the Supreme Court that this is that interstate commerce which 
was covered by the clause in the Constitution, ought not to impose 
upon the people of every communit}'^ this business against their will. 
1 ou are proposing by the defeat of this measure to say to every com- 
munity in the United States that whether the people want this traffic 
or not it shall be imposed upon them under the authority of the United 
States. 

Now, we simply ask to be relieved from that. I live in a city as 
hostile to prohibition as St. Louis and where the mulct law is in force, 
and saloons are running all the time. This is not a question as to 
whether saloons are to run or not to run. It is a question of whether 
the United States Government is going to forcibly impose upon every 
local community this business against their will and their wish. 

If that is not the purpose, then this or some similar bill ought to 
pass. If it is the purpose to thrust this business upon unwilling com- 
munities, then you ought to take no action. 

It seems to me the question is a very simple one. We want to get 
it out of oiir minds that it is a question of temperance or intemper- 
ance, prohibition or license. It is just simply a question of whether 
the high powers of the Federal Government are to be exercised to 
impose this business upon people who do not want it; whether we are 
to nave local self-government in this country upon the liquor traffic 
or not. 

Now, with these few suggestions, which have been hastily made, 
because I did not know until a few moments ago that I was going to 
speak to you upon the subject, I am ready to close, unless there are 
some questions. 

Mr. JDe Armond. I do not understand exactly what change you 
think the passage of this bill would make in existing law. 

Mr. Smith. I think under this bill if liquors were shipped to Iowa 
C. O. D., either to a consignor or to a consignee, who intended to sell 
them, or to X or any other fictitious person, so that the liquors were 
in the State not for consumption by the consignee but for sale, they 
would be subject to the laws of the State and would be subject to con- 
fiscation by the State. 

Mr. De Armond. Does this bill make any addition on that point at 
all? 

Mr. Smith. It does in this respect: It provides that they are sub- 
ject to this police regulation of the State before and after delivery, 
whereas the Rhodes case holds that they can not be touched until after 



HEPBURN BILL. • 77 

delivery to the consignee, and where it is the deliberate purpose not 
to have a delivery to the consignee, as it is where this trouble occurs, 
the liquors can not be reached by the law. 

Mr. De Abmond. Does not that get to the real question of the con- 
stitutionality that is involved, What is the interstate commerce in a 
particular transaction'^ For instance, a man in Iowa — at Iowa City — 
orders liquors from Rock Island, on the other side of the river. What 
is the interetate commerce in that article between those two people 
and those two points? 

Mr. Smith. If I should answer that as to my own opinion, it would 
be this: That when these liquors reached the point of destination 
they passed into the hands of the railroad and express company as 
warehousemen if not delivered within a reasonable time, and they 
ceased to hold them as carriers. But I know there is authority 
aginst me. 

Mr. De Armond. The delivery would be Iowa City in that case? 

Mr. Smith. Yes. 

Mr. De Armond. Would this bill, providing it is constitutional, 
permit the State of Iowa to take charge or take control of those liquors 
when the car containing them crosses the bridge between Rock Island 
and Davenport, when they got into Iowa? 

Mr. Smith. It is not the purpose of the law to reach them until they 
reach their destination. 

Mr. De Armond. I was talking about the terms of the bill. It says 
the boundary of the State. 

Mr. Smith. It says after they arrive within the State they shall be 
subject, and so forth. 

Mr. De Armond. No; it says the boundary of the State. 

Mr. LiTTLEFiELD. It is before ''and after delivery." 

Mr. Clayton. It is like the Wilson bill. 

Mr. Smith. It is identical with the Wilson bill. 

Mr. De Armond. The Wilson bill reads "within the State." 

Mr. Henry. The Wilson bill said " within the State." 

Mr. Smith. I do not know that anybody can claim that there is any 
diflference between arriving in the State and arriving within the bord- 
ers of the State or within the boundary of the State. It is not intended 
to be different, I do not think; I think it was intended to practically 
follow the Wilson bill. 

Mr. Henry. The other was upon arrival in the State and this is 
upon arrival within the boundaries of a State. 

Mr. Smith. In my judgment there is no objection on the part of any 
one to striking out the word "boundary" so as to make it conform to 
the Wilson bill. 

Mr. Clayton. " Shall upon arrival in such State or Territory," and 
this bill says "boundary?" 

Mr. Smith. I would be glad to have anyone tell me the difference. 

Mr. De Armond. I was wondering what the words meant. They 
are in one and not in the other. 

Mr. Smith. The only change, practically, is the "before and after 
delivery." 

Mr. Powers. Under the laws of your State the seizure could be 
made of goods in transit as soon as they passed the boundary line? 

Mr. Smith. I presume if you could catch them it could; yes, but it 
may be diflSicult for a man to get an affidavit on file after they get in 



78 HEPBURN BILL. 

and seize them. There is, perhaps, that practical difficulty, but other- 
wise not. We can not stop the trains engaged in interstate commerce 
under this bill. 

Mr. GiLLETT, of California. How are you going to stop the liquor? 

Mr. Smith. We do not propose to stop the liquor; there is no thought 
of stopping it until it gets to its destination. 

As a matter of fact I will say that u^on reflection 1 recall now when 
this bill was written (I knew something about its origin) there was 
this thought about this matter, that liquors might, for instance, be 
consigned to Harlan^ north of the town of Avoca, and it was thought 
that these liquors might be consigned and instructions given to leave 
them off at Avoca and there sell them. They have to be unloaded 
there anyhow, because there are nothing but branch trains running 
up from there, and they have to be unloaded there and put in the 
warehouse or upon the platform preparatory to reloading them and 
shipping them to the town of Harlan. It was thought at the time this 
bill was drafted — I recall that now — ^that perchance these gentlemen 
who are laboring only for the rights of man would discover, as they 
made a number of discoveries under the Rhodes law, that the best 
thing ta^dpwas to consign these goods to Harlan and then never 
deliver them^atHS^lan, iust as they can send them to the consignee 
and not deliver them to the consignee now; that the same device they 
have gotten up to defy the law now would evade it then if they con- 
signed goods to Harlan and dropped them off at Avoca, and that per- 
haps they ought to be subject to seizure at Avoca. 

Mr. GiLLETT, of California. They could be seized anywhere within 
the boundaries of the State. 

Mr. Smith. 1 grant you that, but practically they can not be seized 
except where they stop. 

Mr. GiLLETT, of California. Under the police regulations, if they 
were bringing in things that were bad, could you not stop them? 

Mr. Smith. No. 

Mr. GiLLETT, of California. Suppose they were bringing in diseased 
cattle. 

Mr. Smith. You could do it then under the police regulations, yes. 

Mr. GiLLETT, of California. Is not this just as bad? 

Mr. Smith. I think not; I do not think it would be under the same 
rule. 

Mr. De Armond. It is not so contagious. 

Mr. GiLLETT, of California. Suppose this bill became a law; in your 
opinion would it amount to a surrender of the authority of the United 
States ? It has been suggested here that that is the trouble, that it 
would be unconstitutional on that account. 

Mr. Smith. The trouble is the people do not make distinctions 
between surrendering the powers of Congress and exercising the 
powers of Congress. 

Mr. GiLLETT, of California. Is Congress doing anything in the mat- 
ter at all; is it not turning it over to the peoples 

Mr. Smith. Yes; Congress is exercising its power under the inter- 
state-commerce law. 

Mr. GiLLETT, of California. If that is true, Congress has the right 
to delegate to any State the control of any goods? 

Mr. Smith. Congress has no power to delegate to a State any power 
whatever, and yet Congress is constantly passing laws for the Federal 



HEPBURN BILL. V\ 

courts sitting as courts of common law, that they shall conform in ^ y 
practice and procedure to the rules of the State courts, and that is an 
exercise of i ederal power and not a delegation of Federal power. 

Mr. GiLLETT, of California. Do they not delegate power when they 
permit a State to interfere with interstate commerce if 

Mr. Smith. Not any more than when they give Iowa, as they have 
done, the right to institute rules of procedure in the courts of common 
law. 

Mr. GiLLETT, of California. Where do you get your authority, then, 
to stop goods at the border of the State? 

Mr. Smith. You are talking about the constitutionality of this law. 
We will take care of ourselves if you have not any law that prevents 
our taking care of ourselves. We are not asking you to take care of 
us; we are asking you not to interfere with us, 

Mr. GiLLETT, of California. Suppose this law was not passed. 
Could you interfere with interstate commerce in any article to be 
delivered in Des Moines, Iowa? 

Mr. Smith. We could not because of the absence of this law, of the 
absence of the exercise of power to regulate commerce. 

Do you understand what the distinction is between a delegation of 
Federal power and the Federal Government saying that your Federal 
courts of common law in your State shall be governed by the same I 

laws and the same procedure and the same rules of practice as provided 
in the State courts? Is that a delegation to the State of Federal 
power? Has the State any jurisdiction to pass laws governing Fed- 
eral courts of common law and their methods of procedure? You are 
pjassing laws of that kind all the time, and they are exercising legisla- 
tive power, and it is not a delegation of power. 

I do not suppose, if there was an absolute prohibition on the State, 
that the Federal Government would do that. There is no prohibition 
on the State doing these things. The onlv disability that the State 
labors under is that the power is vested in the Federal Government. 

Mr. GiLLETT, of California. Suppose the power is vested in the 
Congress; that all rules of procedure shall be under an act of Congress? 

Mr. Smith. Then I say it would be a valid exercise of that power, 
and that is so held everywhere, and that is so with the rules of pro- 
cedure everywhere in this country. It is provided that they shall be 
governed by the State laws and rules. 

Mr. De Armond, The State law to that extent is made a Federal 
law? 

Mr. Smith. The State law is made a Federal law. If it is not a del- 
egation it is an exercise of power, and that is all we want here. This 
is a delegation. 

I have admitted you could not confer additional powers on the State, 
and could not confer any powers on the State; but this is simply an 
exercise of the power that you shall not interfere with us in the exer- 
cise of our own laws and against goods within our own jurisdiction. 

Mr. Little. Then the court held in Rahrer that it was not a dele- 
gation of power? 

Mr. Smith. Not at all a delegation of power. 

Mr. Brantley. What is the law in your State about a transporta- 
tion company having to be furnished with a certificate? 

Mr. Smith. It is a Territorial law. The railroads within our State 
have to have them. We were never foolish enough to dream that we 




HEPBUBN BILL. 

could pass a law that would govern the conduct of corporations out- 
side the State. 

Mr. Brantley. Suppose goods come in from outside the State 
without a certificate, will your law require the company to have the 
certificate after it reaches the boundary line, or can they go on? 

Mr. Smith. I think they can go on, but under this law 1 think they 
would get caught in the act. 

I hope the committee draws the distinction between our trying to 
pass a law which operates extraterritorially and a law which operates 
within our territory on the subject of interstate commerce. We do 
not claim that we can pass any laws that operate extraterritorially in 
that sense as to require corporations out of the State to get permits. 

Mr. Brantley. The point was, an interstate commerce shipment 
starting to some point in your State at the starting point of course 
requires no certificate? 

Mr. Smith. That is true. 

Mr. Brantley. Yet before the shipment can be delivered or delivery 
can be completed, your law requires a certificate or it becomes unlaw- 
ful for the railroad to hold it? 

Mr. Smith. Yes; I think that is probably true. I have not carefully 
examined that particular ^statute since this matter arose, but that is my 
recollection of it. 

I thank the committee for their attention. 

STATEMENT OF ME. AHDEEW WILSON, OF WASHINOTON, D. C. 

Mr. Chairman and gentlemen of the committee, perhaps 1 am unfor- 
tunate in not having been present at the sessions of the committee and 
hearing the arguments of those who have been opposing this bill. 

Probably the greatest difficulty that has arisen in relation to it is by 
failure to properly discriminate as to the powers which are granted to 
the General Government and those which are granted to or retained 
by the States. 

Unquestionably the people of the United States are sovereign and 
had all the authority tnat any independent or sovereign State may 
have or exercise. The power of sovereignty has been delegated in 
part to two forms of government — one to the Federal Government, 
which finds its expression in the Constitution of the United States as 
adopted by the States and by the people and the laws which are passed 
in pursuance of that Constitution (these and treaties are declared to be 
the supreme law of the land); the other to the State governments. 
Each is supreme within its own sphere of delegated sovereignty. 

It was my privilege some time since to make a careful examination 
of the constitutional provision regulating interstate commerce and to 
study the judicial construction thereof. 

To begin at the very foundation of the matter it is just as well to go 
to the leading case on the subject, Gibbons v. Ogden, reported in 9 
Wheaton, 1. On page 189, Mr. Chief Justice Marshall, who was called 
upon to pass upon the meaning of this clause in the Constitution, said: 

Congress shall have power to regulate commerce among the several States and with 
foreign nations and with the Indian tribes. The subject to be regulated is commerce, 
and our Constitution being, as so ably said at the bar, one of enumeration and not of 
definition, to ascertain the extent of the power, it becomes necessary to settle the 
meaning of the word. The counsel for the appellee would limit it to traflSc, to buy- 



HEPBURN BILL. 81 

ing and selling, or the interchange of commodities, and do not admit that it compre- 
hends navigation. This would restrict a general term, applicable to many objects, 
to one of its significations. Commerce undoubtedly is traffic, but it is something 
more — it is intercourse. It describes the commercial intercourse between nations 
and parts of nations in all its branches, and is regulated by prescribing rules for 
carrying on that intercourse. 

And again from the same opinion: 

We are now arrived at the inquiry, What is this power? It is the power to regu- 
late; that is, to prescribe the rule by which commerce is to be governed. This 
power, like all others vested in Congress, is complete in itself, may be exercised to 
its utmost extent, and acknowledges no limitations other than those that are pre- 
scribed in the Constitution. 

What limitations to the exercise of the power by Congress to regu- 
late commerce does the Constitution prescribe? !None. 
Mr. Chief Justice Marshall says: 

These are expressed in plain terms and do not affect the questions which arise in 
this case or which have been discussed at the bar. If, as has been always under- 
stood, the soven'ignty of Congress, though limited to specified objects, is plenary 
as to those objects, the power over commerce with foreign nations and among the 
several States is vested m Congress as absolutel)^ as it would be in a single govern- 
ment having in its constitution the same restrictions on the exercise of the power as 
are found in the Constitution of the United States. 

The wisdom and the discretion of Congress, their identity with people and the 
influence their constituents possess at elections are in this as in many other instances, 
as, for example, in declaring war, the sole restrictions on which they have relied to 
secure them from its abuse. They are the restrictions on which the people must 
often rely solely in all representative governments. 

And in that same case Mr. Justice Johnson, in delivering a concur- 
ring opinion of the court (opinions were delivered seriatim then), 
said: 

The "power to regulate commerce " here meant to be granted was that power to 
regulate commerce which previously existed in the States. But what was that power? 
The States were unquestionably supreme, and each possessed that power over com- 
merce which is acknowledged to reside in every sovereign State. 

The definition and limits of that power are to be sought among the features of 
international law; and as it was not only admitted, but insisted on by both parties in 
argument, that, unaffected by a state of war, by treaties, or by municipal regulations, 
all commerce among independent States was legitimate, there is no necessity to 
appeal to the oracles of the jus commune for the correctness of that doctrine. The 
law of nat'ons, regarding man as a social animal, pronounces all commerce legitimate 
in a state of peace until prohibited by positive law. The power of a sovereign State 
over commerce, therefore, amounts to nothing more than a power to limit and restrain 
it at pleasure. And since the power to prescribe the limits to its freedom necessarily 
implies the power to determine what shall remain unrestrained, it follows that the 
power must be exclusive. It can reside in but one potentate, and hence the grant of 
this power carries with it the whole subject, leaving nothing for the State to act upon. 

Recurring to the opinion by the Chief Justice in this case, we have 
an illustration of the recognition of the principle invoked in the legis- 
lation now proposed: 

It has been said that the act of August 7, 1789, acknowledges a concurrent power 
in the States to reflate the conduct of pilots, and hence is inferred an admission of 
their concurrent right with Congress to regulate commerce with foreign nations and 
among the States. But this inference is not, we think, justified by the fact. 

Although Congress can not enable a State to legislate. Congress may adopt the 
provisions of a State on any subject. When the Government was brought into exist- 
ence, it foimd a system for the regulation of its pilots in force in every State. The 
act which has been mentioned adopts this system and gives it the same validity as 
if its provisions had been specially made by Congress. * * * 

The acknowledged power of a State to regulate its police, its domestic trade, and 
to govern its own citizens, may enable it to legislate on the subject to a considerable 
extent; and the adoption of its system by Congress, and the application of it to the 

H B— 04 6 



82 HEPBURN BILL. 

whole subject of commerce, does not seem to the court to imply a right in tlie States 
to apply it of their own authority. But the adoption of the State system being 
temporary, being only until further legislative provision shall be made by Congress, 
shows conclusively an opinion that Congress could control the whole subject, and 
might adopt the system of the States, or provide one of its own. 

There is a most striking illustration of the application of the prin- 
cipal ^sought to be applied in the proposed legislation. In the exercise 
of its implied powers under the Constitution Congress established the 
national-banking system and created a large number of national banks. 
Under certain well-defined limitations Congress subjected the said 
banks to the taxing power of the States. The legislatures of the 
States, by reason of that permission, did exercise that power over these 
agencies of the United States, a thing absolutely forbidden except for 
the permission so given. There has been no more prolific source of 
litigation in the Federal courts than this. The entire financial system 
of the country has been involved in it, and yet, in all the cases involv- 
ing the question in the Supreme Court of the United States, there is 
not a decision denying the right of Congress to permit the States to 
exercise such power. If, then, such an act by (jongress is constitu- 
tional, when its power is exercised by virtue of its implied powers, can 
the proposed legislation be unconstitutional in the exercise of its 
express powers under the Constitution? 

Kecurring again to practically the closing statement in that opinion, 
we have: 

The couri; is aware that, in stating the train of reasoning by which we have been 
conducted to this result, much time has been consumed in an attempt to demonstrate 
propositions which may have been thought axioms. * * * But it was unavoid- 
able. The conclusion to which we have come depends on a chain of principles which 
it was necessary to prove unbroken; and although some of them were thought nearly 
self-evident, the magnitude of the question, the weight and character belonging to 
those from whose judgment we dissent, and the argument at the bar demanded that 
we should assume nothing. Powerful and ingenious minds, taking as postulates 
that the powers expressly granted to the Government of the Union are to be con- 
tracted by construction into the narrowest possible compass, and that the original 
powers of the States are retained, if any possible construction will retain them, may 
by a course of well-digested but refined and metaphysical reasoning, founded on 
these premises, explain away the Constitution of our country, and leave it a magnifi- 
cent structure, indeed, to look at, but totally unfit for use. 

We have heard a great deal first and last of the original -package 
decision. But the very first original-package decision by the Supreme 
Court of the United States is the case of Brown v, Maryland, decided 
in the January term, 1827, and reported in 12th Wheaton, 419. In 
this case a tax was imposed by the State of Maryland, or intended to 
be imposed, upon goods which were imported. The Chief Justice said: 

It is suflftcient for the present to say, generally, that when the importer has so 
acted upon the thing imported that it has oecome incorporated and mixed Up with 
the mass of property in the country, it has perhaps lost its distinctive character as 
an import and has become subject to the taxing power of the State. * * * The 
object of importation is sale. 

And again, pages 446 and 447 of the report. 

Mr. Parker. Were these imports from foreign countries? 

Mr. Wilson. These were from foreign countries, and the decision 
was given upon the power of Congress over imposts and the prohibi- 
tion of the States to levy imposts. On the question to regulate com- 
merce this is said: 

What, then, is the just extent of a power to regulate commerce with foreign 
nations and among the several States? 



HEPBURN BILL. 83 

This question was considered in the case of Gibbons v. Ogden (9 Wheat., 1), in 
which it was declared to be complete in itself and to acknowledge no limitations 
other than are prescribed by the Constitution. The power is coextensive with the 
subject on which it acts, ana can not be stopped at the external boundary of a State, 
but mubt enter its interior. * * * Commerce IB intercourse; one of its most ordi- 
nary inj^redients is traffic. It is inconceivable that the power to authorize this traffic, 
when given in comprehensive terms, with the intent that its efficacy should be com- 
plete, should cease at the point when its continuance is indispensable to its value. 
To what purpose should the power to allow importation be given, unaccompanied 
with the power to authorize the sale of the thing imported. 

Sale is the object of importation, and is an essential ingredient of that intercourse 
of which importation constitutes a part. It is as essential an ingredient, as indis- 
pensable to tne entire thing, then, as importation itself. It must be considered as a 
component part of the power to regulate commerce. Congress has a right not only 
to authorize importation, but to authorize the importer to sell. * * * We think, 
then, if the power to authorize a sale exists in Congress, the conclusion that the right 
to sell is connected with the law permitting importation, as an inseparable incident, is 
inevitable. 

It will be remembered that in connection with these decisions upon 
the regulation of commerce numerous words are used which indi- 
cate very clearly the power to prohibit and to destroy. I shall not 
discuss that now. The Bowman case and the Leisy ^v. Hardin case 
and a large number of other cases contain, along with the word 
" regulate," words which clearly indicate the power to prohibit. The 
people had all the power that can be granted to a sovereignty. That 
sovereignty rests where? In the Congress of the United States to 
exercise, and it acknowledges no limitations in its exercise except 
those stated in the Constitution itself. There is no statement in the 
Constitution of the United States that Congress may not permit the 
States to control any traffic within their own borders if Congress 
desires to do so. 

I wish to refer for just a moment or two to the Rhodes case (170 
U. S.), which has been cited here, and to state that the court said — 

If it had been the intention of the act of Congress to provide for the stoppage at 
the State line of every intestate-commerce contract relating to the merchandise 
named in the act, such purpose would have been easy of expression. * * * We 
think that, interpreting the statute by the light of all its provisions, it was not 
intended to, and did not cause, the power of the State to attach to an interstate 
conamerce shipment whilst the merchandise was in transit under such shipment and 
until its arrival at the point of destination and delivery there to the consignee. 

Now, all the court decided in that case was that States did not have 
the right to do that thing on the absence of a declaration on the part 
of Congress, and it has been held in relation to other articles which are 
objects of interstate commerce that Congress has the right to permit 
the States to stop them as may be shown if it is necessary so to do. 
In the Bowman case the Supreme Court declared that the States could 
prohibit certain articles of merchandise from being brought into them, 
for Congress had authorized them to do so. In this we have both a 
legislative and judicial precedent for the proposed enactment. No 
case has any such act of Congress unconstitutional. It is only the 
attempted exercise of the power by the States which the people and 
the States have delegated to Congress which has been declared by the 
Supreme Court of the United States to be unconstitutional. 

Now, in the case of Vance v, Vandercook, which is also relied upon 
to some extent, the court (170 U. S., p. 455) held that South Caro- 
lina could not exercise the power sought to be exercised because that 
power had been delegated to Congress. 



84 HEPBURN BILL. 

So after all, Mr. Chairman and gentlemen of the committee, these 
decisions, and each and every one or them, so to the power of the States 
for the reason that as the matter now stands the authority is given by 
the people of the United States, through the Constitution of the United 
States, to Congress to regulate, and in the absence of the regulation 
or the exercise of power on the part of Congress there is not in the 
States any power to enact such laws as were then declared to be uncon- 
stitutional. 

Mr. Smith, of Kentucky. Do you claim that Congress can abdicate 
the power to regulate interstate commerce? 

Mr. Wilson. No, sir; I do not think Congress can abdicate power. 
I do not believe that it would be an abdication of power. 

The power is to regulate, which controls, and is all that any sover- 
eign State would have in relation to it. 

Any sovereign State may exercise that power in the exercise of its 
sovereignty in any way that it pleases, and the Congress of the United 
States can do that, subject only to the actual proliibitions that are 
placed upon it by the the Constitution of the United States, and there 
are no such conditions so far as this bill is concerned. 

Mr. LiTTLEFiELD. No such prohibition ? 

Mr. Wilson. No such prohibition. 

There have been in many instances objections raised to the action 
taken by the Supreme Court in cases that were before them. These 
decisions are very largely political ones by the Supreme Court of the 
United States in that they affect the welfare of the General Govern- 
ment and of the nation. And I want to quote just a little from the 
opinion of Chief Justice Marshall in the case of Craig v. Missouri (4 
Peters, 410, 437, 438). Senator Benton, who appearSi on behalf of 
the State in that case, had advocated certain principles which the 
Chief Justice thought it was necessary for him to reply to, and he did 
it in his usual dignified way: 

In the arguments we have been reminded by one side of the dignity of a sover- 
eign State, of the humiliation of her submitting herself to this tribunal, or the dangers 
which may result from inflicting a wound on that dignity; by the other of the still 
superior dignity of the people of the United States, who have spoken their will in 
terms which we can not misunderstand. 

To these admonitions we can only answer that if the exercise of that jurisdiction 
which has been imposed upon us by the Constitution and laws of the United States 
shall be calculated to bring on those dangers which have been indicated; or if it 
shall be indespensable to tne preservation of the Union, and consequently of the 
independence and liberty of these United States, these are considerations which 
address themselves to those departments which may with perfect propriety be influ- 
enced by them. 

This department can listen only to the mandates of law, and can tread only that 
path which is marked out by duty. 

The controlling principle so often declared and never controverted 
indicates, practically with mathematical certainty, that if Congress 
in its discretion shall pass this bill the Supreme Court of the United 
States will uphold that discretion. 

I shall be pleased to answer any questions that I can if the gentlemen 
desire to ask them. 

Mr. Brantley. Do you think that the States have now the same 

Eower over interstate commerce shipments or liquor that they will 
ave if this bill becomes a law ? 

Mr. Wilson. Undoubtedly not. Otherwise there would be no neces- 
sity for passing it. 



HEPBURN BILL 85 

Mr. Brantley. Then is not an increase of power from somewhere 
granted by this bill, and who grants it? Where does it come from? 

Mr. Wilson. The sovereignty originally resided in the people of the 
whole Union as the nation existed at the time of the beginning of 
independence by the countr3^ 

Mr. Smith, of Kentucky. You mean in the several sovereignties? 

Mr. Wilson. If you will pardon me, I do not believe that I would 
be capable of undertaking to follow either of the schools which have 
followed up the construction of the Constitution of the United States, 
and I think that we can very safely rely for our purpose on the deci- 
sions of the Supreme Court of the united States. For some pur- 
poses the States were sovereign, but so far as they or the people dele- 
gated powers to another government they were not sovereign. 

But the Supreme Court has said that both the people and the States 
made the Constitution of the United States, ana that the power was 
delegated by them — by the people of the United States and of the 
States — and that Constitution declares that the Constitution and the 
treaties and the laws made in pursuance of the Constitution shall be 
the supreme law of the land, and that declaration is a declaration by 
the people and the States as well. I do not think I could follow the 
political argument as to the State rights question from the beginning. 

I thank you very much for your courtesy. 



Washington, D. C, January %0^ 190 J^,, 

Wednesday, at 10.30 o'clock a. m. 

The committee met, Hon. John J. Jenkins in the chair. 

The Chairman. The committee will come to order. 

Gentlemen of the committee, House bill 4072 is the special order 
for the morning. Mr. Dinwiddle, I believe, is present and has charge 
of the time on the part of those who are in favor of the bill. Mr. 
Dinwiddle, you have charge of the time, and we will look to you to 
regulate it on your side. 

Mr. DiNwiDDiE. How much time will we have this morning? 

The Chairman. I can not speak for the committee; I suppose that 
you will have all the time that you require. There are people here 
from all parts of the country desiring to be heard. 

Mr. Clayton. How much time do you want? 

Mr. DiNWiDDiE. It will not take us very long. The understanding 
was that we were to divide the time equally between those for and 
against the bill. 1 can get through very quickly, so far as I am 
concerned. 

Mr. Clayton. How much time will you require? 

Mr. DiNWiDDiE. I suppose about an hour and a half, but I think 
that we can get through in forty -five minutes. 

Mr. Clayton. The House meets to-day at 11.55 o'clock. 

Mr. De Armond. That is just an hour from now. 

Mr. Clayton. I move that we take the time between now and the 
meeting of the House and divide it equally between the fiiends of this 
bill and those who are opposed to it. 

Mr. Parker. I hardly think that will give time for anybody else to 
be heard, for the opponents; they should have more than that. You 
do not mean to limit them to that? 



86 HEPBURN BILL. 

Mr. Thomas. 1 suggest merely to divide the time, say, equally 
between the two sides before adjourning, and by that method it might 
be practicable to determine what time shall be given to the discussion 
or hearing on this bill. I think there ought to be some limit to it. 

Mr. Parker. That practically gives the advantage of an opening on 
both sides? 

Mr. Thomas. Yes. 

Mr. Parker. So that we can go on afterwards with a better under- 
standing? 

The Chairman. Is there anyone who desires to be heard in opposi- 
tion to the bill? 

M^. Sherley. 1 do, but I desire to say that this morning I have to 
appear before the Committee on Rivers and Harbors. I represent a 
district which is more affected, perhaps, by this bill than an}^ other 
in the country, and I should appreciate it verv much if the committee 
would see fit to name some specific hour at wfiich my people might be 
heard, and at which I might be heard. 

Mr. Goebel. I represent the third district, Mr. Chairman, and I 
also desire to be heard some time. 

Mr. Thomas. We might continue this hearing from day to day until 
we can dispose of it. 

Mr. Bartholdt. Will you permit me to say one word? I repre- 
sent the St. Louis district, as you know, and there are a number of 
gentlemen from St. Louis who would like to be heard on this bill, and 
also the chairman of the German-American Alliance, which has 
1,600,000 members and represents more than 3,000,000 votes, and 
while they have a number of representatives here there are many 
more who want to be heard. Nearly every State in the Union is now 
organizing for the purpose of asking a hearing before you or sending 
a delegation here for tne purpose of being heard on this bill, and I 
therefore suggest that it would be impossible for you gentlemen to go 
on from day to day with the hearings, because those gentlemen could 
not possibly be here in time. 

Mr. Southard. I have a large number of telegrams of constituents 
of mine, some of them indicating that they would like to be heard 
before this committee. No time was mentioned, but they said they 
supposed there would be plenty of opportunity after to-day, so that 
I would be pleased if they could have an opportunity at some subse- 
quent date to appear before the committee. 

The Chairman. Mr. Thomas, is your suggestion in the nature of an 
amendment to the motion of Mr. Clayton ? 

Mr. Thomas. No; I supposed that the suggestion of Mr. Clayton 
was approved or adopted, tnat we proceed this forenoon with the hear- 
ing of both sides, dividing the time equally, and what I said was 
merely in the nature of a suggestion and not intended as a motion at 
all. Jrerhaps before adjourning we should come to some determination. 

The Chairman. We will then have practically a half an hour this 
morning for each side. That is your idea? 

Mr. Thomas. That is the idea of the mover. 

Mr. Southard. May I be pardoned for asking a question, Mr. 
Chairman. Is it the purpose of this committee to continue this hear- 
ing at a substantially later day or to continue from day to day? 

The Chairman. The action of the committee this morning is for 
each side to be heard for half an hour this morning, and some time 



HEPBURN BILL. 87 

during the day the committee will probably indicate wh'at their pleas- 
ure will be. 

Mr. SuLZER. Mr. Chairman, I desire to say to the committee that 
a number of citizens of New York City desire to be heard in oppo- 
sition to this bill, and I would like to nave the committee, if they are 
going to have continuous hearings, or if the hearings are going to be 
concluded to-day 

The Chairman. Mr. Sulzer, the pleasure of the committee this 
morning is to hear both sides, each side for half an hour, and it is 
undecioed what they will do after that time, but whatever is done we 
will endeavor to give you notice. 

Mr. Sulzer. 1 do not assume that the committee is going to con- 
clude the hearings to-day. This is a very important bill, Mr. Chair- 
man, and I know a number of persons very much interested, who can 
not be here to-day. 

The Chairman. We will take your suggestion into consideration 
when the committee is determining what they will do. 

Mr. ScuDDER. I represent another section of the State of New York, 
Mr. Chairman, and I should like to say that a number of constituents 
of mine have suggested to me that they would desire an opportunity 
to be heard in this matter. 

Mr. Crain. I am counsel, Mr. Chairman, for the United States 
Brewers' Association, which represents the brewers of this country 
and is an opponent of this bill. I am only making this statement so 
that if you gentlemen in executive session see fit to take up this dis- 
cussion you will understand that we ask, of course with a great deal 
of courtesy, that we shall be given time (not thirty minutes, nor an hour, 
but that we shall be given time) to express our views on the constitu- 
tionality of this bill, and that can not be done in thirty minutes or an 
hour. This bill is probably as far-reaching in its effects as any bill 
that has been presented to Congress since the civil war. 1 say that 
with entire confidence, and so when you gentlemen go into executive 
session 1 make that suggestion to you. 

Mr. DiNwiDDiE. Under these circumstances may I say simply this, 
that in order to facilitate these matters this morning, and in order that 
the rest of these gentlemen may have an opportunity to be heard, 1 
will make my remarks very short, but will ask further to submit to 
the committee in writing what we do not get to submit before the 
committee in person. We could have a great many people here, of 
course, from every State in the Union who are favorable to the pas- 
sage of the bill, and all that sort of thing, but it would take up the 
time of the committee, and I did not think that was the thing to do. 
If that is possible, Mr. Chairman, and with that understanding, I 
would like to just make an initial statement, and then introduce one or 
two persons this morning in favor of the bill. 

The Chairman. There is no objection to you making any statement 
that you desire, or any other person that wants to do so. 

STATEMEITT OF REV. EDWIN C. DIFWIDDIE, LEGISLATIVE SUPER- 
INTEITDEirT, AMERICAN ANTISALOOIT LEAGUE, BLISS BUILDING, 
WASHINGTON, D. C. 

Mr. DiNwiDDiE. I represent the Antisaloon League, Mr. Chairman 
and gentlemen of the committee, an organization which has auxiliaries 



88 HEPBUBN BILL. 

in about 39 States and Territories in the Union, and which is a feder- 
ation of the various churches and temperance organizations of the 
country interested in temperance reform. I shall have occasion during 
the hearing this morning, if there is a continuance of the hearing, to 
introduce representatives of the constituent and affiliated bodies of 
our national organization, who will speak for their own organization 
in this connection. 

We are here this morning in support of H. R. 4072, introduced 
by Mr. Hepburn, of Iowa, which is practically the same as H. R. 
15331 of the last Congress, which was recommended by this committee 
and passed without division in the House on January 27 last. 

It seems to me that the necessity for this legislation was so clearly 
set forth in the report of the House, submitted by Mr. Clayton of 
Alabama, that I cannot do better than refer to it in this opening state- 
ment. 1 shall not take the time of the committee to read it. It is 
report number 3377 of the Fifty -seventh Congress, second session. 

In view of the fact that Congress is already on record as favoring 
remedial legislation b}'^ the passage of the so-called "W ilson law of 1890 
— the full intention of whicn was defeated by the construction of a 
part of its language by the Supreme Court — there is no apparent 
necessit}^ for a discussion of the wisdom of this policy on the part of 
Congress. In this connection I feel that it is only necessary to say 
that I think it is true beyond any controversy that the States never 
intended to surrender — nor, in my judgment did they actually surren- 
der — their right to protect the health, property, morals, and lives of 
their people under their police powers, nor do I think that any atti- 
tude on the part of the National Government, whether it be by act of 
omission or commission, by which the effective exercise of these powers 
by the States will be rendered nugatory, will be acquiesced in by the 
people of the States. 

As further evidence of the uniform policy of the Federal Govern- 
ment of recognizing the paramount rights of the States to regulate 
the liquor traffic in their own wa^ — whether by license, local option, 
dispensary or prohibitory laws — I call attention to section 3243 of the 
internal revenue laws — edition of 1900 — which reads as follows: ' 

The payment of any tax imposed by the internal revenue laws for carrying on any 
trade or business shall not be held to exempt any person from any i)ehalty or 
punishment provided by the laws of any State for carrying on the same within such 
State, or in any manner to authorize the commencement or continuance of such trade 
or business contrary to the laws of such States or in places prohibited by municipal 
law; nor shall the payment of any such tax be held to prohibit any State from placing 
a duty or tax on the same trade or business, for State or for other purposes. 

This, taken in connection with the passage of the Wilson law of 1890, 
and the whole trend of the Federal attitude toward the liquor business, 
certainly settles the policy of the Federal Government in relation to 
the rights of the States in this matter. 

The question of the constitutionalit}^ of the measure seemed, there- 
fore, in the last Congress to be the only one worthy of serious con- 
sideration. I take it that the action of this committee, and, upon its 
recommendation, that of the House, evidenced the conviction on the 
part of both that the measure would be upheld by the Congress. 
However, it seems to me that any doubt which might have remained 
with reference to the constitutionality of this bill would be dissipated 
by a review of the Supreme Court decision in the Champion lottery 



HEPBURN BILL. 89 

case, handed down on February 23, last, within less than a month of the 
passage of the Hepburn bill by the House. 

In this opinion the court, speaking through Mr. Justice Harlan, 
called specific attention to the fact that the regulation of interstate 
commerce by Congress, expressl}^ confided to it by the third paragraph 
of section 8 of article 1 of the Federal Constitution, to regulate com- 
merce between the several States, carried with it the policy of power 
of prohibition, as illustrated in Mugler v, Kansas (123 U. S., 623); 
Leisy v. Hardin (135 U. S., 100); in the Rahrer case (140 U. S., 545), 
and in Rhodes v. Iowa (170 U. S., 412, 426), all of which have been 
referred to in the House committee report to which I adverted a few 
moments ago. 

I shall not take the time now, Mr. Chairman, to read the opinion of 
the court bearing upon this specific case in the Champion lottery case, 
but I will incorporate it in what I shall submit to the committee later 
on in furtherance of the bill. 

In this connection I want to introduce to you Mr. Andrew Wilson, 
the attorney of our District of Columbia League, and I want to give 
him ten or fifteen minutes, or such time as he may need, to discuss 
briefly the legal phase of the question. 

Mr. Henry. You stated that this bill practicall}'^ changed the bill 
passed at the last session of Congress. 

Mr. DiNWiDDiE. Yes, sir. 

Mr. Henry. What is the difference between the two? 

Mr. DiNWiDDiE. I think the only difference, practicall3% is the 
proviso by which the interference by the State with what is called the 
transshipment of liquor is affected, by which it can not be interfered 
with. The fear was expressed by some people, although we did not 
think it could be done, that the State might interfere with the other 
States' shipments. 

Mr. Henry. Where is the proviso? 

Mr. DiNWiDDiE. It is the last clause of the last section — a proviso. 
It is designed to stop interference, and make sure there will be no 
interference, with trans-State shipments, so that a shipment can go 
from Illinois to Nebraska by the State of Iowa, and from one State to 
another State, without being interfered with. 

Mr. Henry. That is practically the only addition or change ? 

Mr. DiNWiDDiE. Yes, sir. 

STATEMEITT OF ANDREW WILSOIT, ESQ., ATTORNEY-AT-LAW, 
WASHIirGTON, D. G. 

Mr. Wilson. Mr. Chairman and gentlemen of the Committee: The 
bill before this Committee, as it seems to me, is clearly within the con- 
<ititutional right of Congress to enact into law, if Congress, in its wis- 
dom, desires that such a law should be enacted. The provision of the 
Constitution of the United States relating to the control of commerce 
is that Congress shall have power to regulate commerce with foreign 
nations, and among the several States. No limitations are placed in 
the Constitution, which is the charter of the Government of the United 
States, upon the power of the Congress as to this regulation, and any 
statements which are made or can be made relative to the constitu- 
tionality of any such proposed enactment will not find any support in 
any of the decisions of the Supreme Court, from the leading case of 



90 HEPBURN BILL. 

Gibbons v. Ogden, in 9th Wheaton down, one in which the opinion 
was delivered by Chief Justice Marshall, in which the limitations and 
powers of Congress were discussed at length, and wherein the court 
defined also what "commerce" means. 

And without referring to the large number of cases which have fol- 
lowed that, and all of which have recognized the authority of that 
decision, 1 now refer to the last decision, as I understand it, upon this 

?uestion, which has been handed down by the Supreme Court of the 
Fnited States — the lottery case, in volume 88 of the Reports of the 
Supreme Court of the United States, page 321 — and I am going to read, 
from page 346. This was on the question of the transmission of lot- 
tery tickets from a place in Texas to a place in California. In stating 
this case it is. fair to say that the court was divided, five in favor of 
the constitutionality of the act of Congress prohibiting the transporta- 
tion of lottery tickets, and four against its constitutionality; and it is 
well to note that every single justice of the Supreme Court of the 
United States was in thorough accord with the principle that in any 
case where an article of commerce, which is recognized as commerce 
under the law, is subject to be regulated or even prohibited if Congress 
desires to say so. Upon the point involved in this discussion here 
there is no diversity of opinion, and the nine justices are in thorough 
accord. 

Referring to this case of Gibbons v. Ogden, the opinion of the court 
says: 

The leading case under the commerce clause of the Constitution is Gibbons v, 
O^en (9 Wheat., 1, 189, 194). Referring to that clause, Chief Justice Marshall 
said: "The subject to be regulated is commerce; and our Constitution being, as was 
aptly said at the bar, one of enumeration and not of definition, to ascertain the 
extent of the power it becomes necessary to settle the meaning of the word. The 
counsel for the appellee would limit it to traflSc, to buying and selling, or the inter- 
change of commodities, and do not admit that it comprehends navi^tion. This 
would restrict a general term, applicable to many objects, to one of its significations. 
Commerce, undoubtedly, is traffic, but it is something more; it is intercourse. 

** It describes the commercial intercourse between nations and parts of nations, in 
all its branches, and is regulated by prescribing rules for carrying on that intercourse. 
* * * It has been truly said, that commerce, as the word is used in the Constitu- 
tion, is a unit, every part of which is indicated by the term. If this be the admitted 
meaning of the word, in its application to foreign nations, it must carry the same 
meaning throughout the sentence, and remain a unit, unless there be some plain 
intelligible cause which alters it. The subject to which the power is next applied 
is to commerce 'among the several States.' The word *amon^* means intermmgled 
with. A thing which is among others is intermingled with them. Commerce 
among the States can not stop at the external boundary line of each State, but may 
be introduced into the interior. It is not intended to say that these words compre- 
hend that commerce which is completely internal, which is carried on between man 
and man in a State, or between different parts of the same State, and which does not 
extend to or affect other States. 

" Such a power would be inconvenient and is certainly unnecessary. Comprehen- 
sive as the word ' among ' is, it may very properly be restricted to that commerce 
which concerns more States than one. * * * The genius and character of the 
whole Government seems to be that its action is to be applied to all the external 
concerns which affect the States generally; but not to those which are completely 
within a particular State, which do not affect other States, and with which it is not 
necessary to interfere, for the purpose of executing some of the general powers of 
the Government." * * * 

"Again: ' We are now arrived at the inquiry. What is this power? It is the power 
to regulate; that is, to prescribe the rule by which commerce is to be governed. 
This 'power, like all others vested in Congress, is complete in itself, may be exer- 
cised to its utmost extent, and acknowledges no limitations other than are prescribed 
in the Constitution. These are expressed in plain terms, and do not affect the ques- 
tions which arise in this case, or which have been discussed at the bar. If, as has 



HEPBUBN BILL. 91 

always been understood, the sovereignty of Congrees, though limited to specified 
objects, is plenary as to those objects, the power over commerce with foreign nations 
and among the several States is vested in CJongress as absolutely as it would be in a 
single government having in its constitution the same restrictions on the excercise 
of the power as are found in the Constitution of the United States.' 

Mr. Justice Johnson, in the same case, expressed his entire approbation of the 
judgment rendered by the court, but deliverea a separate opinion indicating the pre- 
cise grounds upon which his conclusion rested. Kef erring to the grant of power 
over commerce, he said: '*My opinion is founded on the application of the words 
of the grant to the subject of it. The ' power to regulate commerce,' here meant to 
be granted, was that power to regulate commerce which previously existed in the 
States. But what was that power? The States were, unquestionably, supreme; 
and each possessed that power over commerce which is acknowledged to reside in 
every sovereign State. * * * The law of nations, regarding man as a social ani- 
mal, pronounces all commerce legitimate in a state of peace until prohibited by 
positive law. The power of a sovereign State over commerce therefore amounts to 
nothing more than a power to limit and restrain it at pleasure. And since the 
power to prescribe the limits to its freedom necessarily implies the power to deter- 
mine what shall remain unrestrained, it follows that the power must be exclusive; 
it can reside but in one potentate; and, hence, the grant of this power carries with 
it the whole subject, leaving nothing for the State to act upon." 

The principles announced in Gibbons v. Ogden were reaffirmed in Brown v. Mary- 
land (12 Wheat, 419, 446). After expressing doubt whether any of the evils pro- 
ceeding from the feebleness of the Federal Government contributed more to the 
establishing of the present constitutional system than the deep and general convic- 
tion that commerce ought to be regulated by Congress, Chief Justice Marshall, speak- 
ing for the court, said: 

"It is not, therefore, matter of surprise that the grant should be as extensive as 
the mischief, and should comprehend all foreign commerce and all commerce among 
the States." Considering the question as to the just extent of the power to regulate 
commerce with foreign nations and among the several States, the court reaffirmed 
the doctrine that the power was ''complete in itself, and to acknow^ledge no limita- 
tions other than are prescribed by the Constitution. * * * Commerce is inter- 
course; one of its most ordinary ingredients is traffic." 

Then follows a discussion of the Passenger cases, and the cases of 
Almy V. State of California, Woodruff v, Parham, Crandall v, Nevada, 
Henderson, etc., v. Mayor, etc.. United States v. Holliday, and Pen- 
sacola Tel. Co. v. Western Union Tel. Co. In this last case it was 
decided that telegraph messages are subject to the regulation of com- 
merce between the several States and on the power and authority of 
the Congress. 

Then further on the opinion continues: 

There is probably no governmental power that may not be exerted to the injury 
of the public. If what is done by Congress is manifestly in excess of the powers 
granted to it, then upon the courts will rest the duty of adjudging that its action is 
neither legal nor binding upon the people. But if what Congress does is within the 
limits of its power, anjd is simply unwise or injurious, the remedy is that suggested 
by Chief Justice Marshall in Gibbons v. Ogden, when he said: "The wisdom and 
discretion of Congress, their identity with the people, and the influence which their 
constituents possess at elections, are, in this, as in many other instances, as that, for 
example, of declaring war, the sole restraints on which they have relied to secure 
them from its abuse. They are the restraints on which the people must often rely 
solely in all representative governments." 

But it is unnecessary to multiply cases, especially in view of the 
limited time I have, and it is probably unnecessary to say more than 
this, that there is not one case, from the very time that Chief Justice 
Marshall delivered the opinion in the case of Gibbons v. Ogden until 
this very hour, in which the Supreme Court of the United States has 
not upheld the very principle which is sought to be enacted here in 
this law, so far as the power of Congress is concerned. There is not 
any question but what liquor, in all of its forms, is an article of com- 
merce or traffic, and Congress may deal with it as Congress deems 



92 HEPBURN BILL. 

wise. The purpose, of course, of this legislation is to permit the 
States, as soon as the liquor crosses the line in the States, to have 
jurisdiction of this, and in the exercise of the police power which is 
reserved to the State, and which would be effective but for this com- 
merce clause of the Constitution, so that the liquor may become 
amenable to the laws of the States upon crossing the line, if perchance 
it is to be transported to another State without being delivered — into 
other States. I believe my time has been exhausted, and I thank you 
ver^^ much. 

The Chairman. Five minutes of the time remains. 

Mr. DiNWiDDiE. 1 will not take time this morning to present the 
reasons for this legislation. That can not be done now. I want to 
introduce Reverend Doctor Cannon, of Richmond, Va., president of 
our league there. 

STATEMENT OF REV. JAMES CANNON, JR., EDITOR OF THE 
RICHMOND CHRISTIAN ADVOCATE, RICHMOND, VA. 

Mr. Cannon. I represent before the committee that part of the 
country which is, I think, perhaps more opposed to the liquor traflSc 
than any other section of our country to-day. The method by which 
we oppose the traffic is local option, very largely. We believe in 
managing this business b}^ local authority. We give all of the power 
to the neighborhood life. That being so, you can see at once how we 
believe heartily in the principle of this bill, that the liquor traffic is a 
matter for police regulation, and that each neighborhood ought to be 
able to control these matters. 

If that be so in a county or in a town, certainl}^ it is true in the 
State, and if you take the whole bank of Southern States, the east 
Atlantic and Gulf States, you will find that the effectiveness of the 
legislation throughout the South has depended upon that principle of 
local legislation. We therefore believe that this legislation ought to 
pass, because no other section of the country should have the right to 
project itself into our neighborhood life, and if we do not want the 
traffic to go into our State we ought to have our right in the matter 
protected by the Government. All we ask is to be let alone in this 
matter, and we ask you to pass such a bill that we can have what we 
want. 

STATEMENT OF MRS. MARGARET DTE ELLIS, LEGISLATIVE 
SUPERINTENDENT OF THE W. C. T. U., WASHINGTON, D. C. 

Mrs. Ellis. Mr. Chairman, and gentlemen of the committee, I rep- 
resent an organization of Christian women of the United States. We 
have 300,000 members in our organization. We are organized in 
every State and Territory. 

I am here to say just a word in behalf of the measure, which appeals 
very closely, as has been stated by the speaker who preceded me, in 
States which have already taken a voice in regard to the sale of intox- 
icants in their territory. Word has come to me from all parts of the 
country in the interest of this measure, from those in States where 
this local option or prohibition has been voted upon by communities. 



HEPBURN BILL. 93 

I am sure, from the marvellous strides that are being taken, especially 
in the South, in the local option by counties, that to them this bill 
appeals. 

There is Kentucky, with its 117 counties, two-thirds under local 
option; and Texas — a continent in itself — with its 250 counties, nearly 
two- thirds of that State under local option; and Mississippi forging 
ahead, and Tennessee rolling up county after county, until the entire 
State is permeated with the spirit of prohibition. And it is in behalf 
of these States that we appear to-day, where by the voice of the people 
the saloon has been driven out; where by the vote, by the highest gift 
bestowed upon a man, a citizen of this Republic who has deposited his 
ballot for the protection of his home, the saloon interest is outlawed, 
and then by action of certain men coming in and defying the vote 
the express wish of the people is defied, these men bringing tbeir 
wares into this prohibition territory; and despite the wish expressed 
by the people they still carry on their nefarious business. So it seemed 
to us, as women, that it was time for the Government to speak through 
the National Congress and to say that this nefarious thing must cease. 

A case came before me only yesterday. The president, of the State of 
Virginia, a Quaker, with her husband, standing on the station platform 
at Emporia, Va., noticed a pile of jugs there, and a wagon came and 
backed up and those jugs were loaded up and taken over and put in an 
empty car near by, and then the wagon came back and filled up again 
and again and took them over to this car, and upon making an inquiry 
of the station agent the man told her that these were jugs of whisky 
going to dry towns in North Carolina; that every day the shipment 
from Emporia was something like two wagon loads, and on the 23d of 
December last 600 jugs went down for the Christmas train into these 
local option towns. The distillers have moved out of North Carolina 
into Virginia, and this distiller, within only 12 miles of the State line, is 
carrying on his business, notwithstanding that the people have out- 
lawed it in their midst; and that is why we come to you, and, as the 
representative of the home, for the greatest enemy to the home to-day 
is the legalized liquor traffic, and for the mother whose heart has been 
broken by this cause, and mothers' boys who have gone down, wrecks, 
1 speak to this committee to-day, and I believe that this committee, 
whose work is so vital to the principles of our Government, will 
handle this question bravely and nonestly. 

Mr. Bartholdt. Mr. Cliairman and gentlemen of the committee, I 
should like to be heard at a future date instead of to-day, because some 
of these gentlemen have come from a great distance, and 1 should like 
to introduce first Mr. C. J. Hexamer, president of the German- 
American Alliance. 

STATEMENT OF G. J. HEXAMER, PBESIDEITT OF THE NATIONAL 
GERMAN-AMERICAN ALLIANCE. 

The Chairman. Will you please give your name to the stenographer. 

Mr. Hexamer. C. J. Hexamer, civil engineer, 419 Walnut street, 
Philadelphia, Pa. Mr. Chairman and gentlemen of the committee, in 
behalf of the National German-American Alliance I beg leave to thank 
you for the courtesy you have extended to it by granting its represent- 
atives this hearing. 



94 HEPBURN BILL. 

The following resolutions were passed by the national executive 
committee of the National German-American Alliance last November, 
and were indorsed by the executive council of each State branch in 
every State of the Union, representing 1,500,000 members: 

Whereas, it has come to our knowledge that another effort will be made to pass an 
interstate liquor bill similar to the one known as the ** Hepburn bill" introduced in 
the last Congress, with a minor change, (the substitution of "consigned" for "trans- 
ported"), which does not, however, alter the spirit of the bill; and. 

Whereas, such a law would be a severe check to the volition of sane people and an 
encroachment on the personal liberty guaranteed to every citizen of our land by the 
Constitution, 

Be it resolved^ That the National German- American Alliance most respectfully peti- 
tions the members of Congress not to vote for such a measure, and also to use their 
best endeavors to defeat any such bill. 

Resolved, That a copy of these resolutions be transmitted to every member of Con- 



This was done on November 18, 1903. The following resolutions, 
copies of which are now being forwarded to the House of Represent- 
atives and to the Senate, were passed by our State branches and by 
over 6,000 associations and societies: 

We respectfully petition your honorable body not to pass the measure now pend- 
ing before you, and known as the Hepburn and DoUiver bills. 

As German- American citizens of this country we hold ourselves second to none in 
our devotion to the cause of true temperance and to all that makes for the sanctity 
and purity of the home and decency and order in the State; but we are bitterly 
opposed to the passage of any law that destroys our rights of personal liberty, and 
for the protection of those rights we stand united as one body. As free and sovereign 
members of a free and sovereign people, we believe that we have the right to regulate 
our lives and our homes as we see fit. The right to drink our wine and our beer, 
and to import it into our homes, we consider as absolute an attribute of human 
liberty as is the right to buy any other food. The passage of the Hepburn and 
Dolliver bills will enable the State wherein we live to prevent us from bringing a glass 
of beer or a bottle of wine to our tables, and the divine ri^ht of each to pursue his 
own good in his own way will be sacrificed to the fears and the fanaticism of those 
who regard drink as a crime. We German- Americans have never allowed our love 
of food and drink to degenerate into intemperance or to interfere with the good of 
the community, and we regard these bills as an unrighteous invasion of our manhood 
rights and of human freedom, and as one of the most misleading and iniquitous 
measures ever introduced into Congress, and we pray for its defeat. 

These resolutions, Mr. Chairman, represent the overwhelming senti- 
ment of our population of German origin, roughly speaking about a 
tenth of our nation. In proof of this statement I beg leave to state 
that there are over 700 newspapers published in this country in the 
German language, and, as far as I am aware, these have without excep- 
tion approved of these resolutions. The Hepburn bill, to which we 
German- Americans object, Mr. Chairman and gentlemen, is not a mere 
interstate commerce act, not mere legal technicalities are involved; 
but, Mr. Chairman, its passage would be a sad blow aimed at a funda- 
mental principle of righteousness, sacred to every manly man. What 
is at staJke, and let us not close our eyes to the fact, is the divine right 
of individual liberty, the right, as the great philosopher, Herbert 
Spencer, tersely put it, that " Every man is free to do that which he 
wills, provided he infringes not the equal freedom of any other man." 

The strongest plea that can be put forward in favor of this iniqui- 
tous measure is that it would enable the governments of prohibition 
States tp prevent persons from bringing a glass of beer to their tables, 
because a prevailing majority in sucn States desires — or better still, I 
will say pretends to desire — this end. Let us hope, Mr. Chairman 



HEPBURN BILL. 95 

and gentlemen, that the spirit of liberty has not sunk so low in this 
our beloved Republic that national laws can be enacted to crush the 
individual of an intelligent majority in any State. The spirit of intol- 
erance is one repugnant to the spirit of the age, and doubly so to every 
student of history and to every admirer of republican institutions. 
Especially should our national legislation be jealously guarded against 
the influence of the hysterical shrieks of fanaticism. In our national 
legislators we should have a stalwart bulwark against the erratic, im- 
practical experiments that are sometimes tried by our State legisla- 
tures, laws that are enacted by State legislators goaded on by the 
pricks of fanaticism. 

A majority in New England once drove out a Roger Williams, tor^ 
tured the Quakers, and burned old women as witches. To my mind the 
Puritans, who bore false witness, showing, as it has been mildly put, 
" The blind obstinacy of certain persons who had staked their veracity 
and reputation on the assertion tnat there are witches and were deter- 
mined to convict and execute them," were no lower in the moral scale 
than is the '* professional prohibitionist" who makes assertions and 
even introduces into our public schools as "hygiene" statements that 
science and experience alike disprove. 

If we look into the history of prohibition in the United States, we 
find what a failure it has been. As Mr. Kendal pointed out before the 
Senate Committee on Interstate Commerce on February 13, 1903: 

It has been tried and rejected in 8 States, repudiated at the ballot box by over- 
whelminfij majorities in 13 States. Absolute prohibition is to-day (February 13, 1903) 
alleged to be in force only in three States, viz, Maine, Kansas, and North Dakota. 
It is still on the law books in Iowa and New Hampshire, but in the former State it 
is essentially modified by the mulct law, and in the latter the manufacture of intoxi- 
cants is permitted, and native wines and cider are exempt from the operation of the 
law. If ever the will of the people (as Mr. Kendal well told) has been expressed in 
an unmistakable manner on any question, it certainly was in regard to prohibition, 
a fallacy to which the efficacy of the interstate-commerce law is now to be sacrificed. 

Since the hearing before the Senate committee last year Maine also, 
one of the three remaining prohibition States mentioned — the State 
that originated the prohibition movement — has repudiated this imprac- 
tical measure. [Cries of ''No, no," and "You mean New Hampshire."] 

Let.us frankly ask what has State prohibition legislation, in favor 
of which sane beings are now to be bereft of their volition by national 
legislation, accomplished? The answer has been clearly given by a 
commission of eminent, unbiased men, of national reputation. In their 
introduction to the results of an investigation of the liquor problem, 
Charles W. Eliot, Seth Low, and James C. Carter have over their 
signatures stated as follows: 

There have been concomitant evils of prohibitory legislation. The efforts to 
enforce it during? forty ^ears past have had some unlocked for results on public 
respect for courts, judicial procedure, oaths, and law in general, and for officers of 
the law, legislators, and public servants. The public have seen law defied, a whole 
generation of habitual lawbreakers schooled in evasion and shamelessness, courts 
ineffective through fluctuations of policy, delays, perjuries, negligencies, and other 
miscarriaces of justice, officers of the law double-faced and mercenary, legislators 
timid and insincere, candidates for office hypocritical and truckling, and officeholders 
unfaithful to pledges and to reasonable public expectation. 

Indeed, the late Dr. Howard Crosby well expressed the sentiments 
of the great mass of the people of tHe United States, who, like our- 
selves, are striving for true temperance, when he said that "prohibi- 
tion is the greatest enemy to a much needed reform." The practical 



96 HEPBUBN BILL. 

result of the passage of this bill would be to exclude in prohibition 
States a slightly alcoholic beverage and tonic which has done more to 
drive out ardent spirits and to further the cause of true temperance 
than all the prohibitionists of all times combined, namely, beer, and to 
substitute in its place strong liquors that can be put up in packages 
that will elude detection, which is impossible with beer. 

In every crisis, in colonial times, as well as during our national 
existence, the German element in our land has stood for order and 
good common sense, and has always counseled well. 

As early as 1688 our forefathers at Germantown passed the first of 
all protests against slavery. Their declaration ot independence at 
MecKlenburg antedates that of Jefi'erson; they fed and clothed the 
army of Washington at Valley Forge; they gave the cause of liberty 
a De Kalb, a Steuben, a Herkimer, and a Muhlenberg. About 200,000 
of them fought and bled over the country. They, regardless of party, 
stood as one man for national honor and honesty, voting for sound 
money. And, believe me, sir, we plead to-day from no ulterior 
motives. We are here because we honestly believe that the passage of 
this bill would be a grievous mistake, creating a precedent the final 
outcome of which can not now be foreseen. Because we feel that it 
would be an irreparable blow to individual liberty and the sacred 
institutions of our country, in favor of liberty we raise our voices. 

Mr. Chairman, the branches from all parts of the United States are 
clamoring to be heard at some future time. The notice of this meet- 
ing was so short that we could not get people here from California or 
the Western States, and in my humble opinion I think it would be no 
more than fair to have these people heard here at some time, and I 
therefore most respectfully, in behalf of the National German-Amer- 
ican Alliance, request that another meeting at some future date, at the 
end of February or better still the beginning of March, should be 
accorded us in order to give people ample time to be here and to pre- 
pare what can be said on the subject. What I have said is merely a 
scratch on the surface. I have done as well as 1 can in my humble 
way, but there are eminent men in all parts of the country who can 
bring the subject before you more fitly than I can with my humble 
powers, and I sincerely trust that a future hearing may be granted. 

Might I say one word further. I want to say that it was a slip 
when I said that the State of Maine had repudiated prohibition. It 
should have been 

STATEMENT OF ME. GUSTAV VOSS, OF NEW YOEK CITY. 

The Chairman. You have ten minutes, Mr. Voss. 

Mr. Voss. Mr. Chairman and gentlemen, 1 was only notified a few 
hours prior to this meeting of the fact that it was to be held, and in 
looking into the question I find that it is impossible for us at this time 
to give proper consideration to this vital bill now pending. It has 
been said by the previous speakers that this was a measure that affects 
our liberty, our rights, our personal freedom. It affects the Constitu- 
tion of the United States; it affects the fundamental cornerstone of 
our nation, and I think for that reason we ought to have more time to 
prepare briefs and to place this matter at large before this committee. 
I can only speak at random now, but this measure is not a desirable 
one, as has been shown. It has been tried in many States, and those 



HEPBURN BILL. 97 

States have gone against it. It has been tried in States where it has 
not been tried heretofore, and it has been experimented with. 

I wish it also to be known by the friends of temperance that I am 
not altogether opposed to their point of view; but to prevent the sale, 
to prevent the barter of liquor in the States, as has been shown, has 
created more crimes than the open sale of it. Instead of its use being 
enlarged, people are obliged to conceal it, and when they have it in 
their homes debauch themselves. Instead of that, the States should 
have their police officers and let the people use it, but in the proper 
way ; but they should not attempt to regulate its use in this manner. 
If you, in enacting this measure, curtail the power of one State to have 
intercourse with another State, we can not call ourselves a free people. 

As was stated in one of the opinions rendered on the Wilson bill 
when that was passed, the judge said that it was practically taking us 
by the throat — that is, taking the Constitution bv the throat; but, 
having a bull before us, we have to deal with him. Now, these measures 
go further than the Wilson bill. That simply says that each State may 
act for itself; but here it is said that you must not have any intercourse 
with another State. You except from the general rule this liquor 
question. But, gentlemen, by taking this measure and putting it on 
our statute books, where will we end'^ We can go to the very utmost, 
and simply make ourselves slaves. 

As I said before, I am not prepared on the subject, and I would 
rather be permitted to speak at a future time. 

STATEMENT OF MB. KARL A. M. SCHOLTZ, OF BALTIMOBE, MD 

The Chairman. Will you please give your name and address to the 
stenographer. 

Mr. ScHOLTZ. Karl A. M. Scholtz; 108 East Saratoga street, Balti- 
more, Md. 

Mr. Chairman and gentlemen, I appreciate the courtesy of being 
allowed to appear before your committee on this matter, but I am 
very much in the position of the previous speaker. I received a tele- 
gram late yesterday afternoon stating that this meeting would be held 
here to-day, and I have had very little opportunity of preparing 
myself for it, so that I will not take up very much of your time with 
anything that I may say. 

This question appears to me, as it must necessarily appear to all of 
you, as an indivioual question. It is a question less for Congress 
than for the individual. It is an effort on the part of those people 
who desire prohibition to secure the aid of the national Congress to 
enforce prohibition. In my humble opinion Congress has Tittle or 
nothing whatever to do with this particular prohibition law or the 
enforcement of prohibition. 

Doctor Hexamer in his address told you that the Germans were an 
orderly, peace-loving people, good citizens, and good patriots. There 
is no use in my reiterating that, because history has proven that here 
wherever Germans have settled. I am a descendant of a German 
whose father fought in the civil war and whose brother took part in 
the last — in the Spanish war — and I believe myself to be as good a 
citizen as any man in this country, and yet I do not like to think of 
going down into Virginia, where I was born and raised, or go into 

H B— 04 7 



98 HEPBURN BILL. 

any other part of the country where momentarily the people are suffer- 
ing under that policy of prohibition — and I say momentarily advisedly, 
because, as Doctor Hexamer says, this is one of those passing illusions 
which holds the fancy of the people only for a time. 

The people who hold that opinion to-day are those who are descended 
lineally, largely, from those people who burned over a million people 
as witches because they truly believed that there was really sucn a 
thin^ as witchery, and that it was an offense in the sight of the 
Almighty and that it should be prevented in the interests of humanity; 
and 1 say that should I go back to Virginia — I am living now in Balti- 
more — as I hope to go back some day, and establish myself there — 
provided there is no prohibition law there — 1 might certainly, on 
occasion, like to offer to a guest at my table a good glass of wine or a 
stein or a glass of beer, as the case might be, and 1 cannot think that 
it would be right and just that the people of the particular county, or 
the fraction of a county, or the particular fractional fraction of that 
people, should have the right to say that I shall not have the right to 
entertain my guests as George Washington and Thomas Jefferson, 
and every man in the countr}'^ before that, had the right to do — while 
they were burning witches. 

1 confess that is going back pretty far, but 1 do not know what else 
to compare it with. I have a respect for those people who are advo- 
cating this bill, Mr. Chairman. They are doing it conscientiously and 
honestly, 1 believe, but at the same time I do not believe their view is 
the right view to take in this question. As I say, I have not had much 
opportunity to study it, but I do not think that the constitutional 
question enters into this matter at all — not very much, at least — and 
this is simply an individual question. 1 am like Dr. Hexamer and 
other speakers who have addressed you this morning. There are 
members of the German-American Alliance in every State. There are 
members in Minnesota, and we expected a gentleman here from there 
to-da}'^, and he telegraphed that he expected to be here without fail, 
but I have no doubt his train was delayed. 

We had gentlemen summoned here from every part of the country 
we expected to be here, but the notice that we received of this meet- 
ing was too short to allow them to get here, so that 1 join in request- 
ing — with all due respect and courtesy to this committee — ^that they 
do not hasten the hearings too much, but that they appoint a later day 
when there may be a more satisfactory and a fuller representation of 
the people of the United States, and a more adequate expression of 
the true sentiment of the people before the committee. I thank you, 
gentlemen. 

The Chairman. It is 11.55 o'clock, and some of the members of the 
committee have insisted that they have a right to be on the floor this 
morning. W^hat is the pleasure of the committee? 

It was moved and seconded that the committee go into executive 
session, and thereupon, at 11.55 o'clock a. m.,the committee went into 
executive session. 



HEPBURN BILL. 99 



Wednesday, March ^, lOOJ^,. 

STATEMEITT OF DR. WILBUR F. CRAFTS, SUPERIITTENDENT OF 
THE INTERNATIONAL REFORM BUREAU, WASHINGTON, D. G. 

Doctor Crafts. I am the superintendent of the International Reform 
Bureau, which is located in a building of its own, opposite the Library, 
at 206 Pennsylvania avenue SE. 

The bureau which I represent is in touch with every city, village, 
and borough in the United States by its official organ, its documents, 
etc. I think 1 ma}'^ say for the people who stand by this bill, some of 
whom have been heard and others will be heard, and those represented 
in petitions on record here, that 28,000,000 church members of this 
country — one-third of the voters, who have no personal interest 
involved—as seems to be the case of the men who are opposing this bill. 
I think the statements made, and the people that have come advocating 
the bill, represent substantially about 28,000,000 of Christians, at least 
a very large majority of them. 

1 want to sav in the first place before speaking of the special points 
to which I will refer, that there is but a single issue, shall the United 
States Government continue to lend its interstate powers for the nulli- 
fication of State liquor laws to outside dealers who sell liquors to 
"speakeasies" in ''original packages." In the last hearing it was 
said that the German- Americans were most of them against this bill, 
and that question I shall come to and is a question of some importance, 
since it has been raised, but the one issue and the only practical issue, 
is whether we shall continue to lend the power of the United States 
Congress, its interstate powers, to the nullification of State laws by 
the sale of liquors to "speak easies" by outside dealers. . 

We would remind the committee that only five States of this Union 
would be affected by this law. There are only five States that do not 
have some prohibition territory. Mr. Tillman has asked for this law 
in favor of the dispensary. We believe in making all kinds of liquor 
laws, whether dispensary or prohibitory or local option, solid and 
effective. I want to emphasize another fact, that tnis bill will not 
prevent anyone, as a matter of fact, from keeping liquors for his own 
private use. I think that the German- Americans, the minority, as I 
believe, who have arrayed themselves against this law, know that it 
will not interfere with any German's rights to import beer to his own 
house and I challenge anyone here to show that there is any fear based 
upon fact that in any S^ate the private importation of beer or any 
other drinks will be interfered witn. 

Mr. GiLLETT. Do you want to interfere with that right? 

Doctor Crafts. That point was answered by Mr. Dinwiddle. 

Mr. GiLLETT. Why do you not consent to an amendment? 

Doctor Crafts. That would be interfering with the State laws, and 
the States must have the power and the State laws must have full 
effect. If we were making a national prohibitory law we would 
accept the amendment. 

Mr. GiLLETT. You want to delegate the power of Congress? 

Doctor Crafts. No, sir; it simply leaves the State free. 

Mr. GiLLETT. You want Congress to delegate its present power to 
the States? 



100 HEPBURN BILL. 

Dr. Crafts. No, sir. Let me say this distinctlj^, that prohibition 
people even in dealing with prohibition towns deal with the question 
of buyinff and the subject of solicitation and inducements to buy. 

Take the town of Brockton, my own town, a manufacturing town 
in Massachusetts. They have all classes of population and the major- 
ity of the men drink, but they do not want the rum shops to be open 
in the neighborhood of their homes and of their. great factories; but 
they import in their homes. That does awa}^ with the open saloons 
and elevates the locality. 

They speak of liberty, but liberty can be applied only properly under 
liberty of the law. There is no such thing as liberty for citizens to 
break the laws or liberty for oflBcers to break their oaths to enforce 
them. 

Mr. Alexander. Speaking, for illustration, of Brockton, could Mr. 
Tirrell, if he lives in Brockton — I do not think he does — send out to 
Louisville and buy a gallon of whisky and have it brought into the 
town? 

Dr. Crafts. Certainly; and so could any man. 

This bill would not prevent any man in any place from buying beer 
or other intoxicants for his own private use from any licensed dealer, 
in the State or out of it, and the effect would be to give full effect to 
the liquor law of each State within its own borders, with or without 
local option, or a dispensary law, or a prohibitory law. 

And there is no law anywhere to prevent a man from importing* 
liquors for his own private use that he has bought where thej^ could be 
legally sold. When this is understood I believe the opposition to this 
bill will dwindle by the withdrawal of thousands who have been mis- 
informed and deceived by talk of liberty, for which the word anarchy 
should in this case be substituted. 

I am reminded of the ancient discussions of the schoolma'am who 
debated long " How many angels can stand on the point of a needle? " 
In this case it is the practical question. How can anyone but an anarch- 
ist oppose the Hepburn bill? I do not wonder that representatives of 
the liquor dealers who come here to defend their ^' speak-easy " trade 
talk of everything but the real issue, and what desperate straits they 
must be in for pertinent arguments, who remind us, as if it were an 
argument against this bill, that Germans fought under the flag in the 
civil war, as if that were a reason why they should be arrayed against 
the flag now in the nullification of law for which the flag stands. 

Equally wild is the desperate intimation that people will get liquors 
in defiance of state law if not allowed to get them by law, when this 
bill would not, in any way, prevent any man from getting liquors law- 
fully. The opponents of the bill seem anxious lest private citizens 
may be prevented from importing liquors into their own homes. 
They know that such importation is nowhere forbidden. It is the 
selling of liquors that is forbidden in no-license towns and States. 
Let them speak out and say it is their "speak-easy" trade that they 
are fighting for. Nothing else would the proposed legislation inter- 
fere with. 

They remind me of the burglar whose movements in the cellar were 
interrupted by the crv of the owner of the house at the top of 
the stairs: "Who is there?" Silence. "Why do you not speak?" 
"Because I do not know what to say." These people who have bur- 
glarized prohibition States and towns dare not come out and defend 



HEPBURN BILL. 101 

that in the open. This case represents those who have burglarized the 
State laws of Iowa and the States with local option. All the States but 
five have had their States burglarized by the distillers. 

I have here expressions of opinion as to whether the German- 
Americans are against this bill. That was one of the important facts 
brought out at the last meeting. We did not hear the main issue, but 
we had speaker after speaker trying to get this committee impressed 
with the fact that the German-Americans are against this bill. We 
were told that the alliances which were against this bill represented 
more than a million people, and then the same speaker persisted that 
one-tenth of the population was German, representing something over 
7,000,000 people, and that they were against this bill. 

Granting, for the sake of argument, the truth of the statement of 
the speaker that the alliances represent over a million people opposed 
to this bill, how about the silent four-fifths of the German population 
that are not in the alliances? I have tried to find out the true senti- 
ment of the German-Americans in the country, as to whether they are 
against a bill that is for the purpose of enabling the State to carry out 
its own laws. Here are some of the letters I have received. Twenty- 
nine States have spontaneously replied, and have poured in their letters, 
and have poured in their petitions by the thousand. 

They have been sending their petitions to me and to their Congress- 
men. Twenty -nine States are represented in this list, and these have 
all come in in the last few days since the last hearing. I want to say 
that they come, many of them, from those churches that are largely 
of German stock. There are 60,000 German Methodists; there are a 

freat many United Brethren, of German stock, a great many of the 
Ivangelicals, a great many of the various Lutheran churches, and 
altogether a tremendous constituency of people of those Christian 
churches of Germans which, so far as I can find out, are a unit on this 
matter. And then there are a great many merchants who write on 
their own account on their letter heads and protest very intensely 
against the representation that the German-Americans are opposed to 
this bill. I wish to read several representative letters iii the few 
moments that remain. 
Here is a letter from a printer in Meriden, Conn. : 

I also want to enter my protest against Doctor Hexamer's presumption that all 
German- Americans are opposed to the Hepburn-Dolliver bill by saying that I am a 
son of a man who came from Germany, and that I, with my father and three broth- 
ers, are most emphatically in favor of all measures that are for the preservation of 
laV and the defeat of the nuUifiers. I personally am a prohibitionist. 

Here is another from Metropolis, 111. : 

It is not true, as claimed by the president of the National German- American Alli- 
ance, that German- Americans generally are against the Hepburn-Dolliver bill. We 
claim to be good and law-abiding American citizens, and we do not claim the leader- 
ship of the brewers, distillers, saloon keepers, and their allies at all, and are cer- 
tainly not in favor that they send and sell or smuggle their liquor into prohibition 
States or counties. 

Here is another, from Louisville, Ky. — a good place to come from. 
This is from one of the German pastors there: 

As a law-abiding citizen and German of good standing, I protest against the grow- 
ing interest in casting odium upon my race, and hereby petition your honorable 
body for an early and favorable report on the bill kno.wn as the Hepburn-Dolliver bill. 
Yours, truly, 

J. H. TlTELL, D. D. S. 



102 HEPBURN BILL. 

Here is another from Moores Hill, Ind.: 

As this bill is to make law enforcement possible, the law-abiding Germans are in 
favor of it, and that is a host of them. Also a lai^e number of the Germans are 
strong temperance people and object most emphatically to always being counted 
with the beer drinkers. 

Sincerely, yours, Monroe Vayhinger. 

Here is one from Winona, Minn. : 

Practically all the members of the German Methodist, Baptist, Evangelical, United 
Brethren, and members of other German churches are in favor of the Hepbum- 
Dolliver bill. These Christian people, on account of not being directly financially 
interested in the matter, do not go oefore Congress and ask for the passage of that 
bill, but when it comes to voting they cast their ballots according to the dictates of 
their own consciences. Those Germans that go to the law-making bodies of our 
country and oppose temperance legislation are generally men interested in the liquor 
traffic, their hirelings, or those that are in some yv&y financially benefited by that 
traffic. These people would like to give Congress the impression that they represent 
and are the spokesmen of tl^e Germans in this country; but they are not. They 
simply work tor the interest of their own business ana only represent themselves 
and those immediately connected with that ruin-working traffic and not the better 
class of Germans which they pretend to represent. 

Sincerely, yours, A. H. Muedeking. 

Here is one from the cashier of the ^tna Life Insurance Company 
in Peoria, 111. : 

The German branch of the Methodist Episcopal Church, with which I am con- 
nected, has a membership in full connection in the United States of 60,000 or over, 
and is a body of American citizens of German descent, whose opinions on this sub- 
ject are voiced by the well-known expressions of various general conferences of the 
Methodist Episcopal Church on the subject of the liquor traffic, and I have personal 
knowledge of other German church bodies in the United States that agree with the 
Methodists on this point, hence it is not a fact by any means that German-Americans 
generally are on the side of the brewers on this question. 

Very respectfully, yours, A. W. Koch. 

Here is another from Preston, Minn. : 

It is simply not true that the majority of the German- Americans are opposed to 
the passage of the Hepbum-Dolliver bill. 

Very respectfully, A. Geyman, 

Pastor Evangelical Church. 

Here is another from South Manchester, Conn. : 

I desire to say that in my opinion the German- American voters of this nation are 
a law-abiding people and desire to obey the laws of this nation, and that they are 
not in sympathy with any underhanded, law-defying methods of overcoming the 
statutes of the nation or Commonwealth. 

Yours, sincerely, Emil L. G. Hoenthal. 

Here is another from Wadena, Minn. : 

I protest against the nullification of State liquor laws and no-license ordinances by 
so-called ** original packages" and other ** interstate commerce" tricks. 
Fraternally, yours, 

Rev. G. G. ScHMiD. 

Here is one from Bethany, Oreg., from the pastor of the German 
Presbyterian Church there: 

I notice that quite a stir is being made by the National German- American Associ- 
ation, which seems to make the impression that it speaks as the mouthpiece of the 
ten millions of German- Americans. I know from personal contact with that society 
and its membership that it does not represent the Christian German- American element 
at all, but counts as its chief constituents those personally interested in the liquor 
business. 

Let us not be bulldozed by them. 

Yours, faithfully, Wm. C. Lanbe, 



HEPBURN BILL. 103 

Here is a large batch of letters written in German, which I will not 
read, although I presume many of you would catch the language. 

I will not trouble you to read any more of these letters. Here are 
several hundred letters that have come to me, and a great many have 
come to the Anti-Saloon League and the Senators and Congressmen; 
here are a great many petitions representing churches and synods, 
representing tens and thousands besides those in the record. 

It seems to me that the claim made so often that the German- 
Americans are on the side in favor of nullifying law, or in favor of 
overriding the State or local laws, is a matter that has gone too long 
unconti-adicted. 1 remember in Brooklyn hundreds of thousands of 
Germans gathered and protested against this expression of opinion 
being their opinion — these quiet ones that do not go much into politics, 
but nevertheless the plain people that Mr. Lincoln told us to look 
out for. 

Again, in Cincinnati a thousand or more gathered in a public meet- 
ing and protested against this misrepresentation. 

So, it seems to me that we do not only represent the Protestant and 
Catholic churches for that matter, in petitioning for this law, but the 
law-abiding element of the foreign population quite as much; and I 
am quite sure that before this controversy is over there will be no 
doubt in any mind where the majority of the Germah-Americans 
stand in this matter. 

1 want to mention now, in the moments that remain, an instance or 
two of how this law is violated, for this has not been brought up. 
Mr. Dinwiddle will bring in more instances, I have no doubt. 

1 know a local-option town where the express companies are turned 
into liquor stores. All along the shelves of the express compan}^ are 
to be seen bottles, bottles 1 if a man has a thirst and once orders a 
bottle through the express company that bottle is then kept there and 
as soon as he has used up the contents, if he is seized with another 
thirst the}'' will bring him another bottle of liquor — and without wait- 
ing for him to order it — because they are pretty sure that he will be 
seized with another thirst. 

Mr. Clayton. To what town do you refer? 

Doctor Crafts. Washington, Pa. I have been there and looked the 
matter up. Then, in many cases, the consignment of these liquors is 
made to John Doe or Richard Roe, a little package with a single 
bottle in it sent to John Doe or Richard Roe, and then the bill of lad- 
ing is transferred to whoever wants the bottle. It is simply a device 
for peddling the liquor from door to door and through the streets. 
And then, again, the liquor is sometimes consigned to a person by some 
name and it is said that he has not called for it, and when another man 
comes in and wants to get a bottle of liquor they will give him this 
bottle, which they say was sent to somebody who never called for it. 

And so by a multitude of devices the law is broken down because 
of this possibility of getting it to the consignee before the effect of 
the State law is felt. And so it seems to me that for the protection 
of the nation against the slander of going in and breaking the laws, 
breaking down the laws of these States, we certainly need to have 
legislation like this. The nation certainly must not make it harder 
for the States to enforce their police regulations. The Supreme Court 
has said that two things are supreme, public health and the public 
morals; and cei-tainly the Congress of the United States should stand 



104 HEPBURN BILL. 

at least to hold its hands off when States are trying to promote those 
two supreme things, the public health and the public morals, which is 
the end and object of all this legislation. 

(Thereupon, at 12,80, the committee took a recess until 2.30 o'clock 
p. m.) 

After recess. 

The committee reassembled at 2.30 o'clock p. m., pursuant to the 
taking of recess, Hon. John J. Jenkins in the chair. 

Mr. Bartholdt. Mr. Sullivan, whom you all know, will address 
you first this afternoon. 

STATEMENT OF HON. JOHN A. SULLIVAN, A EEPEESENTATIVE 
IN CONGEESS FEOM THE STATE OF MASSACHUSETTS. 

JVIr. Sullivan. Mr. Chairman and gentlemen of the committee, I 
wish to say in the beginning that I represent in this matter neither 
clients nor constituents, but that I represent only myself; and yet I 
believe that the sentiments I shall give voice to this afternoon are 
shared by a very large majority of the right living and high thinking 
people of Boston, Mass. 

As to representation numerically, inasmuch as one gentleman on the 
other side admits that he represents only 28,000,000, 1 presume that I 
represent the other 52,000,000 people in the United States, who are 
classed by the advocates of this bill as anarchists. I have received no 
instructions from anyone in my district. There are no distilleries in 
the district. There are some breweries, but I have not been instructed 
by them, and, so far as I can learn, none of these breweries are engaged 
to any considerable extent in interstate commerce, as 1 believe most 
of their product is sold within the State of Massachusetts. Therefore 
they would not be affected to any great extent by the provisions of 
this act if it should become a law. 

Mr. LiTTLEFiELD. So that the argument of inconvenience would not 
disturb your constituents much ? 

Mr. Sullivan. No. 1 take it that the object of these petitioners, the 
cause that brought them here, was their desire to prevent the sale of 
intoxicating liquors in the several States, and thereby the violation of 
State statutes. 1 believe it is the illegal sale they desire to prevent, 
for I believe the committee will agree with me — and I do not under- 
stand that the petitioners claim to the contrary — that if the laws of 
their several States could be enforced as to the sale of intoxicating* 
liquors, there would be no very formidable demand for the prohibi- 
tion of the importation of intoxicating liquors intended for consump- 
tion by those who import them. Therefore the demand arises because 
State laws are being violated as to sales of liquors within the confines 
of those States, and those States desire help from the Federal Govern- 
ment in the enforcement of those laws. 

I believe, however, although these petitioners have disclaimed any 
intention to prevent the importation of liquor intended for consump- 
tion, that if this law would pass they would not rest content, but 
would regard it as one victory which would be simply a stepping stone 
to others to be secured later; that in Iowa, where, as I am informed, 
^ there is a law prohibiting the importation of liquor, under this law, 
therefore, no liquor could be imported, even for consumption, in the 
State of Iowa; tnat an agitation would be begun by these people, who 



HEPBURN BILL. 105 

believe, and believe honestly, that they represent the conscience and 
the morals of the countrj^ to secure the same kind of prohibition in 
their several States, namel}^, prohibition of the importation of intoxi- 
cating liquors intended for consumption. 

Mr. LiTTLEFiELD. Do you understand that they now have a statute 
in Iowa prohibiting imjjortation ? 

Mr. Sullivan. That is my belief: I am so informed. 

Mr. LiTTLEFiELD. I did not know about it. 

Mr. Sullivan. I am so informed, but I have not investigated it. 

Mr. Thomas. There is a statute of that kind prohibiting the impor- 
tation of liquors except where there is a certificate from the proper 
authority. 

Mr. Sullivan. And that is the re»l purpose of these petitioners as 
shown by the answer of their counsel, 1 think, who, when asked by a 
member of the committee if he would object to having the words "use 
and consumption " stricken out in the fifth line of the bill, stated that 
he would object; that although it was not their intention to prevent 
importation for consumption, that he would be unwilling to have those 
words stricken out of the bill, although the bill so amended would 
accomplish the intent which he says he seeks to have accomplished. 

It would be a very simple matter for this committee to strike out 
"use and consumption" in line 5, and accomplish all that these peti- 
tioners say that they desire to have acconaplished, and that would be 
an advance on the State law in the several otates where this movement 
is formidable, because then, under the terms of this bill, liquor com- 
ing from another State to be delivered for sale within the borders of 
a prohibition State could be seized before it arrived in the hands of 
the consignee — that is, it could be seized immediately after it crossed 
the State line. 

Now, if this bill is passed, may I not put this (question to the com- 
mittee, and reasonably ? Is it not passed because m the opinion of the 
majority of the people in the several States — I am referring to the 
States having prohibitory laws — it is a desirable thing to suppress as 
far as possible the drinking of intoxicating liquors in order to promote 
the moral growth of the community; such a law is passed in tne exer- 
cise of the police power for the purpose of securing the health and the 
morality of the community? Could you prevent a State from passing 
a similar law against the^sale of tea or coffee? Tea contains a poison 
known as thein, and coffee contains a poison known as catfein. In such 
an exercise of the police power does any gentleman of the committee 
contend that 2Lny court would saj'^ that that exercise was not a valid one ? 

I believe no gentleman would go that far. And therefore it is not 
unlikely that those who do not believe in the use of tea and coffee will 
come before Congress and ask that the words ''tea and coffee " be read 
into this law alongside of "all fermented, distilled, or other intoxi- 
cating liquors"; and according as any great number of a community 
believe that a certain article of food or drink is deleterious, then those 
people will come before Congress and ask Federal assistance to have 
those things prohibited from being sold within the several States. 

I do not think Congress ought to go that far. If you begin you 
make a precedent, and it may lead to that. Perhaps that is somewhat 
fanciful, but it indicates what may be done. 

Mr. LiTTLEFiELD. Would j^ou havc any objection to indicating to 
the committee what your conception is of the extent of the police 



106 HEPBUBN BILL. 

power — to what subjects it applies? I suppose as lawyers we concede 
that there are limits to it. 

Mr. Sullivan. I think we concede, as lawyers, that there are limits 
to it, but I have never found any lawyers who subsequently became 
judges who dared to enumerate the subjects upon which police power 
could be exercised. The}^ say, in a general way, those things that 
promote the safety or health or morals of the community. 1 have 
never known any court. Federal or State, which gave an enumeration 
of the subjects upon which the police power could be exercised. And 
I think in the last analysis, Mr. Littletield, it depends upon the beliefs 
of the people in a given locality, and may vary in the different States. 
So it would be impossible to give any set definition. 

Mr. LiTTLEFiELD. If it involves in the last analysis the suggestion 
you make, that would eliminate any legal principle? 

Mr. Sullivan. I think that is true. I tnink tnat is a practical diffi- 
culty to be met in the application of that law in the courts of each State. 

Mr. Bartholdt. Mr. Sullivan will allow a suggestion right in con- 
nection with the question asked by the gentleman from Maine? 

Mr. Sullivan. Certainly. 

Mr. Bartholdt. 1 believe medical authorities agree that the exces- 
sive use of coffee and tea is just as injurious to health as the excessive 
use of intoxicants, and if that is true the principle which is invoked 
here may be applied to coffee and tea the same as it is applied to 
alcoholic beverages. 

Mr. Sullivan. And people agree that dyspepsia is a bad disease, 
induced sometimes not by tne use of coffee or tea or intoxicants. I 
think, following out that suggestion, that 1 would be almost ready to 
legislate against dyspepsia, if I could, because I suffer from it. Per- 
sonally I do not use tobacco, and liquor very sparingly. The Postum 
people have made millions because they have convinced a great many 
people that coffee is an injurious thing. 

Mr. LiTTLEFiELD. You and I do not take it, I believe. 

Mr. Sullivan. I take my coffee straight. Now, let me ask what is 
the cause, what is the demand for this legislation in the last analysis? 
Is it not the inability of the people in the several States to enforce 
their own laws ? I believe that no reasonable man who is contending 
for this law would say that he could come here and muster this force 
of witnesses if the importation of liquor could be confined absolutely 
to importation for private use. Therefore the desire for it grows out 
of the failure of the State to prevent the sale of it against the pro- 
visions of the State statutes. Now, what is the reason for the failure 
of the States to enforce these laws? 1 take it they must be two, and 
two only. First, that the people in these States have elected men who 
are either inefficient or corrupt, and who therefore can not or will not 
enforce those laws; or else there is an inherent defect in the laws 
themselves. What can be the inherent defect that makes every pro- 
hibitory law a failure? 1 believe even in Maine there is a failure in 
the administration of the law 

Mr. LiTTLEFiELD. That is a question of opinion. 

Mr. Thomas. In what way will this proposed law aid the States in 
enforcing laws regulating the liquor traffic ? 

Mr. Sullivan. In this way: that unless this law is passed, in States 
which prohibit the importation of liquor intended for sale, but which 
permit the importation for consumption, that liquor may be consigned 



HEPBURN BILL. 107 

to persons ostensibly for consumption, but in reality for resale, and 
may be sold again by a person who asserts that it was bought by him 
for his private use; now, then, if you cut oflF the right of the illegal 
seller in the State to purchase it for his own consumption, it follows 
that he can not get it it at all, and therefore can not sell it; and if you 
admit his right to import it for consumption he may apply it to some 
other purpose. 

Mr. Thomas. Then it is your contention that this bill ought not to 
be passed, because, as the law now is, liquors may be shipped into the 
State, and they may be diverted from legal purposes, or it affords an 
opportunity for the evasion of State law. That, I believe, is your 
position? 

Mr. Sullivan. I do not believe I would like to have the gentleman 
define my position for me, after listening to his statement. I object 
to it, for the reasons I have already stated and others which I will 
state. I was asking what is the inherent defect in all prohibitory 
laws. 

I believe the root of it is in the fact that it attempts to prescribe a 
diet for the individual; it attempts to say to him what he shall drink 
and what he shall not drink. In other words, certain gentlemen 
believe that they are their brothers' keepers, and they propose to keep 
their brothers according to their own ideas. They are intolerant of 
the desires and wishes of other men in the community whose desires 
and wishes are different from their own. That is to say, I, in a par- 
ticular State, who like coffee and who do not like liquor, would like to 
say to my friend who does not like coffee, but does like liquor, '' You 
shall not have any liquor, because 1 don't like it, and because I think 
it is bad for you and for the community." That is their position 
exactly. 

Now, I believe that there is not in any State of this Union a majority, 
if the question could be ascertained accurately, who would vote for a 
law that would prevent the consumption of liquors. That is to say, 
you could not find a majority in any State who would be willing to 
vote away their right to drink intoxicating liquors in reasonable quan- 
tities, and it is because you can not find a majority in any State posses- 
sed of ideas of that kind that these laws fail when they are atteinpted 
to be enforced. In other words, the sentiment of the community is 
lacking which is necessary to enforce the real underlying purpose of 
these prohibitory laws, and that is why they fail. 

Mr. Thomas. Then you think that the laws of the several States 
upon this question do not reflect' the sentiment of the majority of the 
people? 

Mr. SuixiVAN. I do not think 

Mr. LiTTLEFiELD. No, that is not his proposition. 

Mr. Sullivan. I do not say that. The gentleman has put his ques- 
tion with a great deal of skill. I do not assert that, quite. I say this: 
That I believe those prohibitory laws were put upon the statute books 
with the assent of a great many men who believe in the use of liquor 
to a reasonable extent themselves, but who believe they have the power 
to control their own appetites and are willing to legislate for those per- 
sons in the community who have not the same power of control. They 
believe further, and know further, that when they have prohibited by 
law the manufacture and sale of liquor within the borders of the State, 
that they can get what they desire from other States, in a lawful man- 



108 HEPBURN BILL, 

ner, and satisfy their own reasonable appetites. I believe that is the 
reason for these prohibitory laws. 

But if you could get a proposed law submitted to the people of any 
State which would deny absolutely to all persons the right to obtain 
liquor for their own use, whether manufactured in the State or out of 
the State, 1 do not believe you would get a majority of the citizens of 
any State to vote for that law. Now, then, 1 believe in effect that 
these people in the several States are asking the aid of the Federal 
Government to enforce these laws. I think that is what it comes to 
in the last analysis. Let me ask if we have the right to do that? 

Mr. LiTTLBFiELD. How would this aid them ? 

Mr. Sullivan. In the way I have indicated, Mr. Littlefield; that 
by permitting the State authorities to seize liquor intended for con- 
sumption imported from another State, that then there would be no 
source from which liquor could come. 

Mr. Littlefield. But do they have such legislation now? 

Mr. Sullivan. I believe they have it in one State, Iowa, and I 
think I said that I believe it will be the attempt on the part of these 
selfsame petitioners to extend that state of things. 

Mr, Littlefield. But, if I get your theory right, you also say you 
do not believe there is any community which would pass such laws. 

Mr. Sullivan. I believe they will fail. 

Mr. Littlefield. Then that is an imaginary difficulty, if it is a 
difficulty from your point of view; it is a contingency which will 
never arise. 

Mr. Sullivan. But if you have this law upon the statute books, 
then they may agitate constantly toward that end, and if by any chance 
my opinion should be wrong, as it may easily be, and some States 
should have a majority for such a law, then that evil which I have 
spoken of would occur. 

Mr. Littlefield. But it is not a very immediate contingency , from 
your point of view? 

Mr. Sullivan. No, that particular aspect is not. 

Mr. Bartholdt. All prohibitory laws passed so far read thusly: 
" The sale and manufactui-e of intoxicating drinks is hereby prohib- 
ited." None of them, so far as I know, say that the sale, manufacture, 
and drinking of intoxicating liquors is prohibited. 

The Chairman. The committee has decided that we can not have 
interruptions, and unless the committee overrules me I will have to 
carry out the order of the committee. 

Mr. Bartholdt. Pardon me, Mr. Chairman. 

Mr. Sullivan. Personally I have no objection to being interrupted. 

Mr. Bartholdt. The gentlemen did not object, but I beg the 
chairman's pardon. 

Mr. Sullivan. To reply specifically to the state of things which 
Mr. Littlefield has called attention to here is the way in which the 

Eetitioners, in their desire to have the laws enforced, could be aided 
y the passage of this law. At the present time under our laws where 
the sale of liquor is prohibited in a State that liquor may not be seized 
before it is put in the hands of the consignee, and if that consignee (I 
am speaking now of most of the States) intended that for his own per- 
sonal use it would then be safe in his own hands from any civil 
authority. Now, however, if liquor should come into a State from 



HEPBURN BILL. 109 

another State it might be seized immediately by the State authorities 
under the provisions of this bill 

Mr. LiTTLEFiELD. That is, if they had the proper legislation, you 
mean? 

Mr. Sullivan. Yes; and if it could be proved that that liquor was 
intended for resale, then the person to whom the liquor was consigned 
could be prosecuted and convicted of a violation of the State law. Now, 
I believe that there are only three legitimate grounds upon which Fed- 
eral authoritj^ may be invoked to help States to enforce their laws, a»d 
those are where the preservation of a republican form of government 
is threatened in a State, or where there is great domestic violence, or 
an actual or threatened invasion of a State by hostile forces In those 
cases the Federal Government may assert its power. But 1 contend 
it has not the right, under the guise of an act to regulate interstate 
commerce, to help a particular State to enforce its own domestic laws. 

Now, the practical question here arises again, whether Congress 
should abdicate its power to regulate interstate commerce, and per- 
haps some gentleman in his own mind may think that it is not a sur- 
render on the part of Congress of the power to regulate interstate 
commerce. Now, what will the result be? The result will be that 
you may have out of the 45 States a great many laws which conflict, 
because the statutes may not progress evenly in all the States. You 
will find that some of the States, by bringing other statutes up to the 
point of this Federal act, will have regulated for all substantial pur- 
poses, interstate commerce, one class of it, that class which has for its 
subject intoxicating liquor, and other States will not have made such 
regulations. Then I ask you what becomes of the intention of the 
framers of the Constitution to have uniformit}'^ in the laws relating to 
the great subject of commerce? Was it not to procure uniformity of 
legislation that this provision of the Constitution was made; was not 
that one of the moving causes ? 

Mr. LiTTLEFiELD. You mean uniform State ligislation? 

Mr. Sullivan. Uniformity in national legislation. 

Mr. LiTTLEFiELD. You mean a uniform rule. 

Mr. Sullivan. A uniform rule, exactly. It was to prescribe uni- 
form rules for the government of commerce that the Constitution 
itself was adopted more than any other cause, I believe. But in this 
you may have rules that are not uniform because you have substan- 
tiall}'^ delegated to the several States the power to regulate interstate 
commerce upon one class of the subjects of commerce. I think you 
do more than that, too; 1 think you interfere with the personal liberty 
of the citizens. I know that some of the petitioners will smile, as they 
always do, at the mention of the words ''personal libert}^" and their 
definition of personal libert}'^ is license to do evil. I can not agree with 
them in that definition. 

Mr. LiTTLEFiELD. That is, we would allow the State to interfere 
with personal liberty ? 

Mr. Sullivan. I think you do, yes, sir; and the discussion between 
Mr. Shirley and Mr. Littlefied this morning, I think, brings that out. 
How do you interfere? 1 claim, first, you interfere with the right of 
free contracts between two citizens, and I know some will say that 
freedom of contract has been frequently interfered with. But there 
ought to be limits where that freedom of contract would not be inter- 



110 HEPBUBN BILL. 

fered with. You prevent, for instance, a citizen of Pennsylvania 
making a sale of intoxicating liquor to a citizen in Iowa. You pre- 
vent a citizen of Iowa making a purchase of intoxicating liquor from 
a citizen of Pennsylvania, which liquor may be intended for his own 
personal use. 

Thus you interfere with the rights of two citizens who have that 
p)ower to contract, or should have it so long as it does not interfere 
with the peace and morals of the State. The latter consideration 
would apply to the citizens in Iowa, under Iowa laws, but I take it it 
does not apply to the citizens of Pennsylvania. When you say that 
an article purchased in Pennsylvania shall not be delivered" in the State 
of Iowa you defeat the purpose of the contract, which is a sale. The 
sale can not be completed, practically, although it may be legally, 
without a delivery. 

Mr. LiTTLEFiELD. He would not receive his material although in 
law it might have been delivered to him? 

Mr. Sullivan. Yes. 

Mr. LiTTLEFiELD. The purpose sought to be discharged by the trans- 
action is defeated? 

Mr. Sullivan. Yes. 

Mr. LiTTLEFiELD. And equally so if he can not sell it in the original * 
package, as a rule? 

Mr. Sullivan. As a rule, yes, sir. I want to say, that so far as my 
individual views are concerned, that I have not any complaint to make 
against that provision of the law which defeats the power of a con- 
signee in a prohibitory State to make a resale of an original package 
of imported liquor in violation of law. I do not care anything about 
that. 

The thing that I object to personally is the invasion of the personal 
liberty of a citizen to eat and drink and wear what he pleases, so long 
as he does not flagrantly outrage the sensibilities and the morals of 
people who live in the same community with him, and I take it that 
that right of personal liberty existed before this Government or any 
other government was constituted, and that there are certain rights of 
personal liberty which no government can take away from the citizen 
by law. And it is because courts are reluctant to say that the exer- 
cise of the police power by a State is violated in a given instance that 
this personal liberty of a citizen is in danger in reality, and we are 
endangering it further by passing this kind of a law. 

I thank the gentlemen for their attention. 

Mr. Bartholdt. Mr. Chairman, I want to take the time of the 
committee for one minute or two, in order to say regularly what I 
tried to say irregularly. The point I tried to make while Mr. Sullivan 
was speaking was this: All prohibition laws now on the statute 
books in this country prohibit the sale or manufacture of intoxicating" 
liquors; they do not say that the sale, manufacture, and consumption 
of intoxicating liquors are prohibited. If they attempted to do that 
also — if any State legislature would endeavor to pass a law of that 
kind — I am sure a majority of that legislature and a majority of the 
people of every prohibition State and every other State in this country- 
would vote down such a prohibition. 

Mr. LiTTLEFiELD. In your judgment that is a contingency so remote 
that it Is hardly worth while taking into account in connection with 
this legislation? 



HEPBURN BILL. Ill 

Mr. Bartholdt. I refer to it merel}^ to show that here is an 
attempt made to circumvent and practically to achieve the same pur- 
pose tnat you can not achieve bv the vote of the people. 

Mr. Clayton. But you say that is not likely to happen ? 

Mr. LiTTLEFiELD. You say there is no probability whatever of that 
occurring. Now, the fact that this legislation may open up the oppor- 
tunity, if there is nothing behind the opportunity it is beyond all con- 
ception; it may as well be eliminated, that is, from your point of view? 

Mr. Bartholdt. I can say in answer to Mr. Littlefield that if pro- 
hibition is a good thing, if you thoroughly believe in the principle 
of prohibition, why don't you get your State legislature to prohibit 
the drinking of intoxicating liquors ? 

Mr. Littlefield. I will not take the time to discuss the ethics of 
the question, although I have fairly well-defined views on the subject. 
I do not think the ethics are really involved in this question. 

Mr. DiNwiDDiE. I would be glad to introduce Mrs. J. Ellen Foster. 

STATEMENT OF MBS. J. ELLEN FOSTEE, LEGISLATIVE SECEE- 
TAEY OF THE NATIONAL NONPARTISAN WOMAN'S CHEISTIAN 
TEMPEEANCE UNION. 

Mrs. Foster. Mr. Chainnan and gentlemen of the committee, I 
could not begin to say how many people I represent, nor how many 
people I do not represent. The society for whom I speak does not 
contain within its ranks a majority of the temperance women of the 
country. This large majority you have heard from through Mrs. 
Ellis, who represents the old W. C. T. U. I represent a smallar 
body of W. C. T. U., whose only material difference from the other 
body is that they have in their cardinal doctrine that they will not 
ally the temperance movement with any political party. Essentially, 
as far as the purposes of this argument are concerned, we are one in 
our purpose — we would all of us like to destroy the liquor traflBc root 
and branch. 

We would consider ourselves very happy if we could pass around 
this honorable body, including everybody under this roof, the tem- 
perance pledge; but we should consider that we would at once be called 
to order by the chairman of the committee, who would say that is not 
the business of this committee. So in order that I may clearly state 
what is my business here, I want to say that I represent women who 
have no other interest in the pending question than interests which 
no man or woman under this roof will dispute. There can be no 
criticism of the interests for which we stand pledged to God. These 
are the interests of morals — ^the interests of good, quiet home living. 

Whatever anybody thinks of woman's position anywhere else, she is 
accredited to have a right to speak for the home. And if the liquor 
traffic exists in this country in any way, shape, or manner, it exists 
because the men of our households — and I am sorry to say some of the 
women of our households — patronize the traffic. So you see the thing 
we are after is just as far as possible to circumscribe the operation of 
the traffic which does us ^o much harm. That is the straight, single 
proposition. 

But 1 am also aware that we can not present that proposition to this 
committee in its wide area, because it is beyond the scope of this 



112 HEPBURN BILL. 

committee to act except in a very limited area. What is that area? 
What is the province of this committee? What may I with good face 
say to you to-day? 

The first thing I may not say is to argue the question of personal 
rights and personal liberty. With that this committee has nothing 
whatsoever to do. I might just as well pass around this table with my 
temperance pledge — which I would be delighted to do when convenient 
opportunity to do it occurs. It would be as improper for me to do that 
as it is for any man to stand here and argue pro and con the question 
of prohibition. It is not the question before this committee. Prohi- 
bition — the regulation of the liquor traflic — is a matter which belongs 
to the States and to the police power of the States. We do argue 
that question, we talk for prohibition, we talk for local option, we 
talk for those things, we talk for anything we think will help us 
before our States. We go to the forum where that question has a 
right to go. 

Therefore, although I am intranced by the arguments which have 
been made here and to which you have most decorously listened, and 
although I am tempted to enter into a discussion of that question, my 
own common sense tells me I must not; because you can not — although, 
gentlemen, you are great lawyers at home and you are honored by 
places on this committee— yet, excuse my impudence, if you call it so, 
you have nothing to do with the police power of Iowa or Maine or 
the great rich State of Missouri, from which my honorable friend 
comes. If they choose to prohibit, they will prohibit. If they 
choose to go to the extent of the prohibition of tea and coffee, they 
may go that far, and this committee can not say them nay. It is 
wholly a matter within their discretion. There is not a lawj^er at this 
table, or in this room, that will dispute this proposition. Therefore, 
prohibition is not before this body at all. 

Also I am surprised that the question is narrowed to so fine a 
point. I thank the gentlemen on the other side of this question who 
have so narrowed it down. Thej'^ even say they do not object to the 
law which prohibits the sale of imported liquors. Am I not cx)rrect? 
I think the proposition has been stated here. Good sense they have, 
because the courts have passed upon that doctrine, and the lawyers on 
this committee, whatever they may think about it, would not encourage 
any of their friends outside of the committee to stand here as lawyers 
and argue against the proposition which the Supreme Court has sus- 
tained. 

Then the only point — I think I am correct — the only point in con- 
troversy between us is whether this body can represent to the honor- 
able bod}'^ yonder that it is constitutional and proper that this House 
of Representatives should sa}'^ not only it is right that the State may 
so far interfere with interstate commerce as to prohibit the sale, but 
that it shall go farther and sa}'^, ''You can not even set your liquors 
down in the State." 

I think that is just the point of difference between us. Our gentle- 
men friends and ladies on the other side think that it is an interfer- 
ence with the right of interstate commerce, of which you are guardians, 
gentlemen, as representing the General Government, that it is an inter- 
ference with the right of the General Government to do that, that it 
is a violation of the right of free contract to say that Louisville, or 
Peoria, or Cincinnati can not send out and make a contract to deliver 



HEPBURN BILL. 113 

liquors inside the State of Iowa, or going the other way, down in old 
Maine. Now then, the point that we discuss is this. 

One gentleman whom 1 listened to with great interest this morning, 
went back to the adoption of the Constitution, and he said very correctly 
that the desire, the immediate necessity, which led our fathers to the 
adoption of the Constitution was the desire for uniformity, for har- 
mony between the States, and we who are acquainted with the historic 
lesson know that there were different lines operated by the different 
States, that one State would pass a tariff law,. another a conflicting 
tariff law, that there was lack of harmony between the States, and so 
they said, "We must have one supreme authority, and it shall be the 
Government acting under the Constitution," and that therefore the 
Constitution was adopted to provide this harmony, and this harmony 
will be broken if we interfere with this proposed legislation with the 
right of contract. 

I^ow, then, the only right of contract which will be interfered with 
by the operation of this proposed legislation would be the right of 
contract by which the citizens of one State might deliberately, with 
malice aforethought, break the laws of another State; that is, by which 
Illinois from Peoria, or Kentucky from Louisville, might interfere 
with the operation of the laws of the State of Iowa. Would it be 

food policy; would it be in the interests of public policy for this body 
ere at the Capitol to make it possible to hold out a soi*t of bid to 
Kentucky, to Illinois, to make this a sort of an Iowa? I only use these 
two States because nobody can deny that Illinois and Peoria do a lot 
of manufacturing, and Iowa does a lot of what you, perhaps, may call 
arrogant boasting of its prohibition. 

As was stated this morning, I think correctly, all but five States in 
this Union will be affected by the operation of this law; because it is 
not only the prohibition States, it is the States that have local option 
laws, it is the local option counties that will be affected by it. We 
use only the names of the great States because it is easier to use those 
than the others. So, then, the point to which we are driven at every 
turn of this argument, whether it be argued in legal terms, or whether 
you call it oratory in the popular acceptation of the term, what we are 
met with at every turn is tnat the power to regulate interstate com- 
merce may go to the extent that it may forbid the sale, but it can not 
forbid the introduction into the State of the liquor which would never 
be introduced if the incident, as I think one gentleman called it, of 
sale were not — what shall I say, free 

Mr. LiTTLEFiELD. Predicated upon it. 

Mrs. Foster. I thank you. 

Mr. LiTTLEFiELD. A word I often use. 

Mrs. i'osTER. I do not know whether that is predestination or what 
it is, but it is an excellent word. 

Another point. On the one hand we are told that the Congress of 
the United States does not delegate its power to the State; that is, its 
power to regulate interstate commerce, and that this would be a dele- 
gation of power from the Congress to the State, if the Congress gives 
to the State the right to say that liquors shall not be introduced into 
the State. That proposition we flatly deny. Iowa can not say to Illi- 
nois, "You shall not send liquors across our territory." That is legiti- 
mate interstate commerce. Iowa can not say that liquors shall not 
pass over the State in transit from Illinois to Nebraska. It does not 

H B— 04 8 



114 HEPBURN BILL. 

say that; it could not say that. It does not presume to say that. But 
it simply does say ''Can not stop; can not land your stuff on the ter- 
ritory of the State of Iowa." 

It is not regulating interstate commerce. It is merely regulating 
the traffic that goes on in its own territory, which it has as much right 
to do under our Constitution as it has been enforced and made known 
to us from the times of John Marshall to the time of Chief Justice 
Fuller, as clearly maintained as any other doctrine under which we 
live. 

Then again it is claimed that it is dangerous to do this, that there is 
no telling what the States may do. Don't you be concerned about the 
States, gentlemen. You have just been taught that you can not dele- 
gate your power. Don't be worried lest the States may run away 
with any liberty which you may give them. The States do not ask 
you for liberty or otherwise. They ask you to keep hands off and let 
them alone. That is all they ask of this body. 

Now, if it is necessary to sort of cripple the States lest they should 
do spmething desperate, do not you see that you are assuming by 
that very proposition that you have a right to do or not to do with the 
State? 

You are not guardians to protect the General Government against the 
fanaticism of the States. People may get crazy yet. They may pass 
prohibitive laws against tea and coffee and all manner of such things — 
they may. If they do you can not help or hinder it. It is not neces- 
sary that you should exercise such a guardianship of the States. You 
say that you can not give the right of the General Government to 
interfere with the right of interstate commerce. Do not assume the 
right that you are the guardian lest the States should be run away 
with by the fanatics of the States. 

Take one or the other horn and stick to it, but do not claim on one 
side that you can not pass this law because it is an attempt of delega- 
tion of power of the General Government to the States and then turn 
around and say '^ You must not enact it lest you should thereby 
encourage the States to do something that they ought not to do. We 
will take care of the States, gentlemen of the committee, we will. 
Just you take care of the General Government and keep out of the 
way of the States. That is all we ask. 

Again, it has been inquired several times here concerning the right 
of the individual to import for himself, and whether we would inter- 
fere with that, or would we? Gentlemen of the committee, we are 
not all great lawyers, as you are, but we would not stand before this 
committee and ask you to put anything into this law which is plainly 
beyond the power of this committee to do. The States will say what 
can be done with the individual. The States will say whether John 
Doe or Richard Roe may import liquors for his own individual use. 
That is not concerned in this law. We will not be diverted from our 
advocalcy of this law by any scarecrow of this sort. That is not in the 
law. We did not put it there, and we doubt whether it would with 
propriety be put there. 

I think I am correct in saying — if not I shall be happy to be cor- 
rected — that there are two States in the Union, widely separated, who 
do that very thing. Iowa says no man shall sell intoxicating liquors 
in the State of Iowa unless he complies with certain conditions; that 



HEPBURN BILL. 115 

is, unless he sells for necessary use, medicinal — and what are the 
others; scientific 

Mr. LiTTLEFiELD. And mechanical. 

Mrs. Foster. Mechanical, yes; thank you. They do not say relig- 
ious any more, to be used at the sacrament. They struck tnat out, 
did they? 

Mr. Thomas. I thmk it is there. 

Mrs. Foster. The necessary uses of liquor may be complied with; 
that is, a person may sell for those necessary uses, and unless a person 
is so qualified he can not import. So you see it does cover the point. 
I think it is South Carolina, clear away from Iowa, I think that is the 
other State. Iowa and South Carolina stand exactly together on this 

Question. They sajr that a person may not import for his own use, 
isit no person may import except as provided by the State. There 
we suppose that the intention is that the State may get all the money, 
because they have a dispensary law by which the SSite deals with the 
liquor traffic. You will remember the decision handed down only 
yesterday on the right of taxation by the General Government of the 
traffic in the State of South Carolina, although the State itself dealt in 
the liquors. 

So, whether it is or whether it is not a thing to be desired, the States 
have acted, and you gentlemen, as a committee, are not asked to act 
upon that question. 

Mr. Bartholdt. Will you allow a question? 

Mrs. Foster. Certainly. I don't know whether I can answer it or 
not. 

Mr. Bartholdt. You say you will take care of the States? 

Mrs. Foster. Yes. 

Mr. Bartholdt. There is a prohibition law in Iowa? 

Mrs. Foster. Yes. 

Mr. Bartholdt. How do you account for the open saloons and the 
running of breweries there? 

Mrs. Foster. By the natural depravity of man. That is the way I 
account for it. 

Mr. Bartholdt. In other words, if 1 am permitted to ask another 
question, the passage of the so-called Mulct law in Iowa is due to the 
general depravity of man ? 

Mrs. Foster. Yes. The crime of all our States is due to the nat- 
ural depravity of the human race, and I think there is but little more 
excuse for the depravity of our people in the matter of the use of 
strong drink, because, you know, it was a great many years this poor 
old race of ours had plodded on before it found out that alcohol is a 
poison. That is the basis of all these things, you know — all the differ- 
ent things; the thing men want is the alcohol, and it was many years 
before we found out it was bad. A great many other things we have 
just found out. You know our fathers were wise in their generation, 
but they did not find out what electricty was until Benjamin Franklin 
discovered it. So it was with drinking. 

People did not find it out, and in the meantime people were being 
poisoned, and little children were born into the world desiring it 
because their fathers and mothers and grandfathers had used it and 
the taste was inherited; they were not to blame. There are a lot of 
people who drink it to-day who have inherited the taste in the same 
way — but where was I at? 



116 HEPBURN BILL. 

The States were taking care of this question, and then came the 
question concerning Iowa, which I suppose the gentleman from Mis- 
souri was lead to think of because the htete did not take care of it, and 
he asked, Why didn't they? That is a fair question, because you have 
a right to say, when I say the States will do it, ''Why don't you?" 
We do the best we can, gentlemen and ladies. That is what we do, 
the best we can. But the very harmony of our system of law implies 
that the General Government will help us to do in each State what we 
want to do, and it defends the liquor traffic, where the State allows the 
liquor traffic, with just as much pertinacity as it defends a prohibitor3^ 
State that does not want the traffic. 

The men of Illinois, the men of Ohio, and the men of Kentucky are 
just as secure in their right to manufacture liquors, if the people of 
those States do not say nay, as we are in Iowa to say it shall not be 
manufactured. I lived in Iowa once, a good manv years ago, and I like 
to say "we" in speaking of Iowa. 1 am forced by time to get back to 
this closing thought, gentlemen. 

We are not in this day and age of the world limiting the power of 
the General Government. We are asserting the right of the States, 
and we are all the time trying to harmonize legislation in the States. 
You who are lawyers know that the tendency of legislation is to do 
that thing. That is, we are asking for uniform laws through your 
National Bar Association, and then you get up and, as lawyers, try to 
arrange for harmony between the States. We have been asking for 
uniform divorce laws lately, because we see there must be as much 
harmony as possible; because the General Government is careful all 
the while to see that it does not invade the rights of the individual 
State. 

Gentlemen of the committee, may I not ask you if this is not the 
tendency of the world at large? We are trying to harmonize even 
the laws of the nation. While we are respecting the rights of indi- 
vidual nations, this country, taking the lead among the nations, is very 
careful to indicate how one nation shall not encroach upon another 
nation. Who was it that just a little while ago, sitting at the head of 
the diplomatic table of the world, said to two old nations who are 
fighting one another and have each other by the throat, ''Fight if you 
will, fight if you must, but stay put there; do'i't invade the administra- 
tive entity of China," whatever that means. 

Mr. Clayton. Keep off the grass. 
* Mrs. Foster. Yes, keep off the grass. I wish that had been said out 
loud. ThiEit is exactly what we do say. 

Now, gentlemen of the committee, here we are as individual States. 
We have not yet been able to secure so strong a majority of sentiment 
throughout the country that it will come to this capital and say that it 
is in the interest of the whole people that the liquor traffic ought not 
to be allowed anywhere. In the millenium, in the Kingdom Come, 
perhaps we will get to that; but we are a long ways off now. We can 
not do it now; that is very plain. But we do say, as John Hay said: 
"Stay where you are and respect" — what? The administrative entity 
of the States in their legislation against the liquor traffic. What is 
this administrative entity ? It is the exercise of its police power; that 
is what it is. There is no discussion about that police power; it has 
been settled over and over again, as your lawyers have told you; 
There is no discussion at all; we all know what that means. They 



HEPBURN BILL. 117 

knew in Baltimore the other day, when the flames were going, they 
knew what police power meant. It meant to blow up valuable build- 
ings to stop the flames; that is police power. Now, gentlemen, that 
is all I have to say. 

Mr. Henry. I would like to ask you a question for information. 

Mrs. Foster. Ver}^ well, although I do not know everything. 

Mr. Henry. I think you know about this. Is it a fact that there 
are open saloons in Kansas and Iowa where they have State prohibition 
laws? 

Mrs. Foster. I would not like to say so, but I think so. 

Mr. Henry. I have heard so very often. 

Mrs. Foster. Yes; I would not wonder if you could find some open 
saloons in Davenport, and I would not wonder if you could find some 
open saloons in some towns in Kansas. 

Mr. Clayton. We might examine Judge Thomas of Iowa on that, 
as he is probably an expert on that. 

Mr. Henry. The judge would not be apt to find them. 

Mrs. Foster. But, Mr. Chairman, I think if you would go into 
Kansas or Iowa or any other State you would find dens of iniquity of 
all sorts that are forbidden by the laws of those States. 

Mr. Henry. I was simply asking for information. 

Mrs. Foster. I think likely it is so. 

Mr. Henry. And they have State prohibition laws? 

Mrs. Foster. All laws fail. They would not have them, you know, 
if the folks did not need them. If it was not for this original sin, 
you know, we would not have it. 

I think, I hope, you will excuse my tribulations. I find something 
in this committee very provocative of this spirit. I have to guard 
against my heart getting the better of my head and doing something 
which would lead you to remark "Oh, well, that is just like a woman." 
But all the same the sentiment is there. Only yesterday a woman in 
this city came to me with the greatest happiness and joy. She said 
"Oh, Mrs. Foster, you know what trouble I was in a year ago; I 
came to you thinking I would have to ask you to assist me in getting 
a legal separation from my husband. You know he was a dninkard. 
I am here to-day to tell you that I have won out." Her face was as 
radiant as the face of a happy child. "What do you mean?" said I. 
"He has quit, he has quit; he has not touched a drop for so long. I 
have won out." 

You don't want me to talk that sort of stuff here, do you if No, 
you don't want me to; but you pass this bill and you will help many a 
woman all over this country to win out. You will, because there is 
the old original sin I have told vou about, and the law of this country, 
gentlemen, to be accessory in tne original sin in the human heart 

Mr. Henry. You understand Doctor Bartholdt is not a member of 
this committee, but we think a great deal of him. 

Mrs. Foster. I thought he was. 

Mr. Bartholdt. I should like to introduce 

Mr. DiNwiDDiE. Pardon me one moment. I feel the question asked 
a while ago deserves an answer. I have traveled through Iowa and 
Kansas as I have from Maine to California, and have observed very 
largely conditions. It is a fact that in cities in Kansas like Kansas 
City, Kans., Atchison, Leavenworth, and Witchita and, unless they 
have changed again in the last year, Topeka, there is a good deal of 



118 HEPBURN BILL. 

violation of law; but generally speaking throughout the State of 
Kansas there is a very fair and good enforcement of the legislation in 
that State. 

It ought to be borne in mind that Iowa is not a prohibition State 
entirely. Prohibition law in Iowa is modified (if I am incorrect Judge 
Thomas will be kind enough to correct me) by what they call a mulct, 
and what we call in Ohio a tax law. So while the law of the State of 
Iowa is prohibition, yet it can be modified by local sentiment, and 
saloons are tolerated. It is a good deal like the organic law of Hawaii. 
It is prohibitory except as modified by the Territorial law, and they 
have modified it. 

The Chairman. It has been suggested that we continue in session 
until 5 o'clock, if that is agreeable to you. 

Mr. DiNwiDDiE. Your pleasure is mine on that score. 

A Gentleman. Mr. Chairman, may I ask this gentleman one ques- 
tion, if you please? I would like to ask simply this: If this bill 
should become a law (his having pronounced Iowa a prohibition State, 
and that yet at times the law allows saloons), whether this law would 
apply to Iowa; whether by this law vou could deprive the people of 
the privilege they have voted themselves? 

Mr. DiNwiDDiE. I thought I had made it clear. This law does 
nothing in the world but to give the States full opportunity to regu- 
late this question in their own way under their police powers. It is 
not new legislation. It does not do anything in tne world except give 
the legislature of the States opportunity to show what they will do, 
untrammeled by sales and importations from the outside. 

Mr. Bartholdt. I would like to introduce Major Harrison. 

The Chairman. How long a time will you desire? 

Mr. Harrison. I can not estimate how long I will talk. 

STATEMENT OF MAJ. DUNCAN B. HAEEISON, OF WASHINGTON, D. C. 

Mr. Harrison. Mr. Chairman and gentlemen of the committee, 
previous to going into the details of the question at hand I would like 
with your permission to ask two or three questions of the Revs. 
Doctor Crafts and Dinwiddle. 

The Chairman. We do not think it advisable to allow that kind of 
procedure. 

Mr. LiTTLEFiELD. Can you not put j^our questions in an interroga- 
tory way in your remarks, and give them an opportunity to answer 
later? 

Mr. Harrison. All right, sir. 

I desire to place on record some exhibits. Exhibit A is a petition 
to the United States Senate in favor of the Hepburn-DoUiver bill. 
Exhibit AA is a petition to the House of Representatives in favor of 
the Hepburn-Dolliver bill. Exhibit B is a book entitled ''Moral 
Legislation in Congress, Past and Pending." Exhibit C is a book or 
pamphlet entitled "American Anti-Saloon League." Exhibit D is a 
pamphlet entitled "Hearings before the Committee on Immigration 
of the United States Senate." Exhibit E is a pamphlet entitled "The 
McCumber bill to be pressed in the United States Cfongress." Exhibit 
F is a pamphlet entitled "Scientific Testimony on Beer." Exhibit 
FF is a bill entitled "Beer and the Body." Exhibit G is a pamphlet 
entitled "High License in Massachusetts, New York, and Alaska.' 



HEPBURN BILL. 119 

Exhibit H is a pamphlet entitled ''Moral Victories, Won and Waiting." 
Exhibit 1 is a book entitled "The History of the International Reform 
Bureau." That is all for the present. 

Mr. LiTTLEFiELD. Do jou waut all these matters to go in as part of 
your statement? 

Mr. Palmer. What is the purpose of the exhibits? 

Mr. Harrison. For the purpose of demonstrating positively beyond 
the peradventure of doubt, together with additional testimony, letters, 
and affidavits, that all and every particle of the sentiment that has 
been created among the public, and every petition that has been gotten 
up has been influenced by false statements in these exhibits, state- 
ments, gentlemen, that 1 can positively i)rove beyond the peradventure 
of doubt are without foundation and without the semblance of truth. 

Mr. LiTTLEFiELD. Do they affect the merits of the bill ? 

Mr. Harrison. Absolutely. 

Mr. LiTTLEFiELD. Why not come to the specific proposition on 
which you rely, unless it embarrasses you. 

Mr. Harrison. It will embarrass me relative to the argument, 
because these exhibits are cumulative and corroborative of what I wish 
to say. 

Mr. LiTTLEFiELD. It would be suggested that that is an unusual 
proceeding, and perhaps people on the other side have been engaged 
in a similar propaganda. 

Mr. Harrison. There is no question about it, that it is unusual, 
but, on the other hand, the people I represent have not been engaged 
in a like method of soliciting in securing petition and working up 
sentitnent. 

Mr. LiTTLEFiELD. Or creating sentiment in opposition to legislation ? 

Mr. Harrison. Not by false statements. 

Mr. Chairman and gentlemen, I fully realize the difficulties which 
confront me to combat the voluminous evidence presented to you by 
the Rev. Dr. Wilbur F. Crafts, superintendent of the International 
Reform Bureau; the Rev. Dr. Edwm C. Dinwiddle, superintendent of 
the Anti-Saloon League; Mrs. Margaret Dye Ellis, superintendent of 
the Woman's Christian Temperance Union, and numerous other elo- 
quent witnesses that this and the preceding bill known as the Hepburn 
Bill 4072, whose passage the witnesses whom I have named eloquently 
advocate. 

I am placed in the position of sincerely regretting my impotency as 
a public speaker. I am not an orator as are Doctor Crafts, Doctor 
Dinwiddie, Mrs. Ellis, and the witnesses for their various associations 
whom they have presented before you, and perhaps after their flights 
of oratory it is fortunate for you that I am just a plain, ordinary indi- 
vidual, possessed with a knowledge of facts, and will therefore confine 
myself to facts and nothing but facts. 

Not facts in name, Mr. Chairman and gentlemen, but absolutely 
indisputable facts, based on foundations which are inconvertible and 
can not be shaken. Facts and figures and proofs — the figures and 
proofs being twin brothers to the facts — not garbled, not suppositi- 
tious, but away and above beyond suspicion. 

Mr. Chairman and gentlemen, some of the proofs, in point of fact 
all of the proofs, which I will submit to you for your consideration 
will be startling, some of them appalling, and many of them will shock 
you when you realize their far-reaching effects. Yet everything in 



120 HEPBURN BILL. 

the shape of evidence which I will present to you will be indisputably 
proven. And I, who will present tnem, will stand ready to answer to 
you and to the laws of my country if guilty of any misstatement, any 
distortion, oi any misrepresentation. 

You have all heard the opinions of the officers of these reform asso- 
ciations expressed before you, and further, printed and distributed 
broadcast throughout the world, through these exhibits, whose authen- 
ticity they have acknowledged, and in which they openly state and 
advertise that it is their aim and ambition and life's desire to sup- 
press, to ruin, to annihilate, the great brewing industry of America. 

Think of this, Mr. Chairman and gentlemen. They seek to ruin and 
destroy the absolutely greatest industrial developer (and I speak under- 
standingly) to-day in the United States of America — for that is what 
the American brewing industry positively is, and which I will conclu- 
sively demonstrate. 

Now, Mr. Chairman and gentlemen, let me show the disastrous 
effects that would result if this measure, the Hepburn bill, were to 
become a law, and the appalling effects to the country at large if the 
efforts of these reform associations and their officers were to succeed 
in having this measure passed. 

Allow me, however, here to state, that beer is not an intoxicant, as 
claimed by the officers of these associations, and this fact has been 
proven beyond the question of doubt by the most noted analytical 
experts in the entire world, by our own analytical experts, by the 
investigations and analyses of the Department of Agriculture, by the 
additional testimony or many of the most celebrated physicians and 

Erofessors and savants given at the Pure Foods Investigation of the 
Fnited States Senate Committee on Pure Foods and published in the 
report of that committee, Senate Report No. 516, Fifty-sixth Con- 
gress, first session, demonstrating that the beers, ales, and porters, 
lagered and brewed by the brewers of America are absolutely free of 
impurities, preservatives, or of any ingredients deleterious to health, 
ana further, that they contain such a small proportion of alcohol as to 
be justly considered nonintoxicants. 

There are 1,870 breweries in the United States of America 

Mr. LiTTLEFiELD. Before you go to that point, if it does not disturb 
you, as a matter of fact, I would like to know what standard these gen- 
tlemen have for intoxication. If it disturbs you, however, do not stop. 

Mr. Harrison. They are recognized as some of the greatest author- 
ities; they are well-known professors, and the analyses of these sam- 
Sles of beers and ales and pointers were made by the United States 
overnment Department of Agriculture. There were several hundred 
samples purchased throughout the United States, and every one of 
them was analyzed by the Bureau of Chemistry, under Doctor Wiley, 
and of all the beers, ales, and porters that were analyzed by that 
Department through the pure-food investigation committee of the 
Senate not one was found to contain a substance of any kind delete- 
rious to health, or a preservative of any nature, or an impurity of any 
nature. 

Mr. LiTTLEFiELD. That goes to the question of purity or impurity. 
What I would like to know is whether these distinguished men held 
that beers, ales, and porters are not intoxicating. 

Mr. Harrison. If you will allow me to continue I will demonstrate 
that later on. 



HEPBURN BILL. 



121 



Mr. LiTTLEFiELD. Very well; I do not want to disturb you. I 
simply had curiosity to Iknow what standard they used to establish 
that process, but you will reach that later. 

Mr. Harrison. During the fiscal year ending June 30, 1903, the 
brewers of America brewed 47,647,856 barrels of beer, in 1,870 brew- 
series in the United States of America, located as follows: 



Alabama 


5 

....^.. 1 

115 

21 

23 

5 

1 

6 

23 

121 

43 

24 

3 

26 

8 

5 

46 

43 

97 

93 

58 

23 

18 

6 

57 


New Jersey 


61 


Arkansas 


New York 


257 


California 


South Dakota 


5 


Colorado 

Connecticut 

Delaware 

Florida 


Ohio 

Oregon 

Pennsylvania 

Rhode Island 


127 

'28 

238 

9 


Georgia 

Idaho 

Illinois 

Indiana 

Iowa 

Kansas 

Kentucky 

Louisiana 

Maine 

Maryland 

Massachusetts 

Michigan 

Minnesota 


South Carolina 


] 


Tennessee 

Texas 

Utah 

Virginia 

Washin^on 

West Virginia 


5 

11 

9 

7 

31 

8 


Wisconsin 

Wyoming 

Alaska 

Arizona 

District of Columbia 


170 

4 

4 

1 

4 


New Mexico 


3 


Missouri 

Montana 

Nebraska 

Nevada 

New Hampshire 


Oklahoma .•. 

Hawaii 

Total 


2 

3 


1,870 



These brewers paid for taxation to the United States Government 
the enormous sum of $47,54:7,856 — 20.60 per cent of the entirety of 
the internal revenue receipts for the fiscal year ending June 30, 1903. 

Since the inception of the internal-revenue tax on September!, 1862^ 
the brewers of the United States have paid into the National Treasury, 
up to and including the fiscal year ending June 30, 1903, the enormous 
sum of $928,000,000 in round numbers, per this Treasury statement. 
Think of it, Mr. Chairman and gentlemen, the brewers of America 
pay into the United States 20.60 per cent of the entirety of the internal- 
revenue tax, or enough money yearly to support two-thirds of the 
standing Army of our great nation, more than half of our incompara- 
ble Navy. 

And this is the industry which these reform associations and their 
oflScers seek to destroy. 

There is invested in the brewing industry in this country for their 
magnificent plants and institutions, in actual bona fide capital, over 
$790,000,000. Exclusive of the enormous taxes which the brewers 

Eay the National Government, they pay to the various States of the 
Fnion for taxes on their properties annually over $27,000,000. 
At the outbreak of the Spanish- American war the brewers patriot- 
ically and gladly accepted the double war tax of $2 per barrel upon 
their products as their share of the war burden. And during the three 
years that double war tax remained upon their industry over 260 fail- 
ures and consolidations took place in their midst. 

They suffered this crushing burden of taxation in uncomplaining 
silence until our country had safely recovered from the hardships and 
expenses incurred by tnat war, and then, and not until then, did the 



122 HEPBURN BILL. 

brewers ask for relief, which had been agreed upon, from the crush- 
ing double war tax which threatened and imperiled their very existence. 

Mr. Palmer. You say they paid $928,000,000 in taxes during what 
period? 

Mr. Harrison. From the 1st day of September, 1862, up to and 
including the 30th day of June, 1903, they paid $928,383,000, as cer- 
tified to by the Treasury Department. 

Mr. Palmer. Was that on beer? 

Mr. Harrisoi^. Yes, sir. 

Mr. Palmer. Have you the figures to show what that cost the 
people of the United States? 

Mr. Harrison. Yes, sir. 1 will come to that a little later on. 

Mr. Palmer. What the consumers paid for that beer on which the 
tax was $928,000,000. 

Mr. LiTTLEFiELD. Involving the element of profit to the producer^ 

Mr. Harrison. The tax on the brewers industry represents about 
23.9 per cent of their entire income. That is the Government tax. 
In otner words, it has been demonstrated that the brewers of America 
pay about 24 or 25 cents on every dollar they receive, that much in 
taxation to the Government, ox very nearly that much. 

Mr. LiTTLEFiELD. On their gross income? 

Mr. Harrison. On the gross receipts from beer, ales, and porters. 

Mr. LiTTLEFiELD. For instance, what does a barrel of ale sell for? 

Mr. Harrison. The average price is about $4.01; I think that is the 
average. 

Ana, lest we forget it, Mr. Chairman and gentlemen, the present 
tax of a dollar a barrel on beer is also a war tax and was imposed by 
the Government in 1862, and after the conclusion of the war was con- 
tinued voluntarily and patriotically by the brewers as their share of 
the burdens of the Government. This present tax of $1 per barrel 
represents very nearly 25 per cent of the entire revenue of the brewing 
industry; 25 per cent of all their sales, 25 per cent of every dollar the 
brewers receive on their products goes to the United States Govern- 
ment for taxation, for the benefit of all the people of the land, including 
these reform associations and their officers. In these keen days of 
competition and advance prices for commodities this 25 per cent repre- 
sents all — absolutely all — that the brewing industry can stagger under 
in the shape of taxation and exist. 

Through the great brewing industry and its various branches, over 
773,000 men are employed — not men, women, and children, but men, 
industrious wage-earning men, citizens, and voters, who through their 
wages support over 3,800,000 members of their families in our great 
country, per accurate Census reports, 1902. 

Indirectly, and through their aflSliations with kindred trades, and 
through the farmers, who grow for them their hops, barley, rice, 
rice-meal, rice-flour, hominy, hominj grits, sugar, sugar-cane, and 
beet sugar, the brewers of America give support to anotner 1,600,000 
American citizens, thus directly and indirectly furnishing through 
their vast industries employment and support to over 5,465,000 people 
of the population of this country, per accurate Census reports, 1902. 

From tne products of the soil the brewers of America pay over 
$117,000,000 annually to the farmers of the country per accurate 
Census reports. 1902. 

In hops, barley, rice, rice meal, rice flour, hominy, hominy grits. 



HEPBURN BILL. 123 

sugar, sugar cane, and beet sugar the brewers annually invest over 
$64,000,000 per year with the farmers of this country, per accurate 
census reports, 1902. 

And these products are not confined to any section of this country; 
but from ocean to ocean, from the Atlantic to the Pacific, in every sec- 
tion of everj^ State of the Union the farmers of our lan'^ thrive upon 
the brewing industry. 

Four million six hundred and sixty-one thousand and sixty-three 
acres of farm land are devoted to raising barley alone for the brewers 
of America, per accurate census report, 1902. 

The value of the barley crop to tne farmers directly, aggregates the 
enormous sum of $61,808,634, per accurate census report, 1902. 

During the fiscal year ending June 30, 1903, the brewers of America 
brewed 47,547,866 barrels of beer and paid for taxation to the United 
States Government the enormous sum of $47,547,856.08, 20.60 per 
cent of the entirety of the internal- revenue receipts for the fiscal year 
ending June 30, 1903. 

Since the inception of the internal-revenue tax on September 1, 
1862, the brewers of the United States of America have paid into the 
National Treasury, up to and including the fiscal year ending June 30, 
1903, the enormous sum of $928,383,456.22, per this Treasury state- 
ment. 

Think of it, Mr. Chairman and gentlemen, the brewers of America 
pay into the United States Treasury 20.60 per cent of the entirety of 
the internal-revenue tax, or enough money yearly to support two- 
thirds of the standing Army of our great nation, or more tnan half of 
our incomparable Navy. 

And this is the industry which these reform associations and their 
officers seek to destroy. 

There is invested in the brewing industry in this country for their 
magnificent plants and institutions, in actual bona fide capital, qver 
$790,000,000. 

Exclusive of the enormous taxes which the brewers pay the National 
Government, they pay to the various States of the Union for taxes 
on their properties, annually, over $27,000,000. 

At the outbreak of the Spanish-American war the brewers partic- 
ularly and gladly accepted the double war tax of $2 per barrel upon 
their product as their share of the war burden. 

And during the three years that double war tax remained upon their 
industry, over 260 failures and consolidations took place in their midst. 
And they suffered this crushing burden of taxation in uncomplaining 
silence until our country had safely recovered from the hardships and 
expenses incurred by that war; and then, and not until then, did the 
brewers ask for the relief, which had been agreed upon, from the 
crushing double war tax which threatened and imperiled their very 
existence. 

And lest we forget it, Mr. Chairman and gentlemen, the present tax 
of a dollar a barrel on beer is also a war tax, and was imposed by the 
Government in 1862; and after the conclusion of the war was con- 
tinued voluntarily and patriotically by the brewers as their share of 
the burdens of the Government. 

And this present tax of one dollar per barrel represents very nearly 
25 per cent of the entire revenue of tne brewing. . 

And of this mammoth crop of barley, with a total of 134,954,023 



124 HEPBURN BILL. 

bushels raised, only 8,714,268 bushels were exported and otherwise 
used, while the balance, the enormous balance of 126,240,755 bushels 
were raised and consumed in the product of beer, ales, and porters by 
the brewers of America. 

In the State of Iowa alone, from which this Hepburn bill (H. R. 
4072) originates, the farmers last year received $4,861,809 for the one 
product — barley, nearly all of wnich was paid for by the brewers of 
America. 

In the great Southern States of this country, embracing Alabama, 
Arkansas, Florida, Georgia, Kentucky, Louisiana, Missouri, North 
Carolina, South Carolina, Tennessee, and Texas, over a million acres 
of farm lands are devoted to raising rice, hominy, hominy grits, rice 
meal, rice flour, sugar, sugar cane for the brewers of America, per 
accurate census report, 1902. 

Hundreds of thousands of acres in the Pacific coast States, embra- 
cing California, Oregon, and Washington, and the State of New York, 
are devoted to the raising of hops, and from these several States 
200,0»)0 bales of 180 pounds net per bale, with a total of 36,000,-000 
pounds, at an average value of 25 cents per pound, or a total of 
$9,000,000 to the farmer, were produced last year for the brewers of 
America, per accurate Census report, 1902, and this specific report 
from the United States Department of Agriculture. 

Hundreds of thousands of acres of farm lands in every section of 
the country are devoted to raising hay, oats, grain, and general feed 
for the armies of horses of the brewers of America, per accurate 
Census report, 1902. 

Thousands of acres of farm lands are devoted to the culture of beet 
sugar, of which the brewers of America are large consumers, per 
Census report, 1902. 

Thousands of horse breeders and cattle raisers depend entirely for 
sustenance upon the brewers, and many of these farmers and horse 
breeders, with their families, exist altogether through the industry of 
brewing. 

Mr. LiTTLEFiELD. Docs the Census report show how mu<ih hay the 
brewers' horses consume? 

Mr. Harrison. No; but we have it. The way we get it is, there is 
so much hay to the acre, and so many horses to the brewer, and we 
know how many brewers there are, and so we estimate it, knowing 
what the average price of the keep of horses is per month. 

Mr. LiTTLEFiELD. I had curiosity to know whether the Census went 
into the details. 

Mr. Harrison. The Census gives those figures accurately. 

There is no State in the Union that does not produce from the soil 
for the brewing industry. 

Why, Mr. Chairman and gentlemen, I could continue all day to 
recapitulate to you the facts relative to this great brewing industry, 
and the benefits which accrue from it, and then not do the subject 
justice. And it is this industry, with its enormous ramifications, which, 
has been assailed by H. R. 4072, and through these exhibits which 
have b^en placed before you, and by which I will demonstrate to your 
entire satisfaction, and prove beyond interrogation that this bill and 
all of the sentiment created in favor of this bill, including the avalanche 
of petitions which you have received, and which have been thrust upon 
you, have originated. 



HEPBURN BILL. 125 

And let me state here that all, every one of these petitions, emanate 
from these reform associations and through their officers, aAd it is the 
brewing industry of America, particularly, which they assail. 

Why, Mr. Chairman and gentlemen, if reform is desired there is 
absolutely no greater conducer to honest reform in the misuse and 
abuse of intoxicants than can be had through the beers, ales, and port- 
ers of our American brewing. 

Beer is a greater need and necessity than all of the combined drugs 
in the pharmacopoeia of medica, it is meat and drink to millions of our 
citizens, not alone the poor man's drink, but the drink of the debili- 
tated, the sick, the weary, the senile, and the strong. 

What would the acutely nervous American woman do without this 
beverage? Go ask this question of the physicians of the land, and 
they will answer with one accord, the loss of beer to humanity would 
be irreparable. 

Mr. LiTTLEFiELD. What is your proposition; that beer is not 
intoxicating? 

Mr. Harrison. I say that by investigation and analysis the Depart- 
ment of Agriculture of the United States of America has proven 
beyond dispute that there are no impure American beers, ales, and 
porters. The records of the Department of Agriculture show that there 
were purchased under the pure food investigation of the Senate of the 
United States (Senate report 516, Fifty -sixth Congress, first session), 
hundreds of samples of American beers, ales, and porters in the open 
market, in nearly every city, town, and hamlet of the Union, and it was 
demonstrated by minute chemical analysis, conducted by the Bureau 
of Chemistry, under Professor Wiley, of the Department of Agricul- 
ture, that none of the samples were found to contain impurities or 
ingredients of any nature deleterious to health. That I have already 
stated. 

Mr. Clayton. Will you let me ask 3'^ou a question there? 

Mr. Harrison. Yes, sir. 

Mr. Clayton. What percentage of the standard beer is alcohol? 

Mr. Harrison. About 3i to 4 per cent. 

Mr. Clayton. It runs as high as 5 per cent, does it not? 

Mr. Harrison. It depends entirely^ upon the class of the brew. 
Beers fluctuate. 

Mr. Clayton. If it is only 3i per cent, and a man has the carrying 
capacity, it could make him drunk, could it not? 

Mr. Harrison. As you state, ''If a man had the carrying capacity." 
1 have never seen one yet. It is a proven fact that two-thirds, even a 
greater proportion, of beer is food, and this is the industry that these 
reform associations and their officers seek to harrass and destroy. I 
challenge them to point to one overt or covert act which can be attrib- 
uted justly to the brewers of this country. 

I invite attention to the magnificent institutions created by the 
brewers of America. I point to their stupendous buildings and devel- 
opment plants, forming cities in themselves. I invite attention to 
their splendid business methods; to the countless model homes which 
they have erected for their workmen; to their beneficent charities, 
public and private; to their sterling citizenship; to their sobriety and 
morality; to their devotion to their families; to art, to music, and to 
the higher educational branches, and to the indisputable fact that they 
are constantly creating, continually^ advancing, always progressing, 



126 HEPBURN BILL. 

ever building up, while these associations and their oflScers are seeking 
to pull down, to tear down, ever striving to destroy — to obliterate. 

Mr. Palmer. Do you argue that the brewing business is a benevo- 
lent institution? 

Mr. Harrison. I do not. It is not my desire to place a crown of 
glory or halo around the brewers, but I desire to represent the facts 
about them, which is that they are sterling business gentleman worthy 
of consideration and respect and that they do not deserve the slander 
and vituperation that is cast upon them by these associations through 
the medium of misrepresenting documents of this nature which have 
been circulated, according to their own statements, by the millions in 
every town and hamlet of the United States, and abroad, also, for the 
purpose of creating sentiment in order to crowd the Hepburn bill 
through. 

I ask these associations and their officers, and 1 proclaim my inter- 
rogations from the house top. What recompense can you and will you 
give for the millions in value which you seek to destroy '( How much 
food and clothing, and creature comforts will you expend to the mil- 
lions of people wnose positions you seek to take away from them? 

How will you recompense the hundreds of thousands of farmers of 
our country for their barren fields, their empty storehouses if you are 
successful in your efforts to pass these measures against the brewing 
industry of America? 

How will you educate the millions of children whom you seek to 
deprive of education b}^ denying the wages of labor to their fathers 
and brothers? 

How many homes will you provide for those whom you render 
homeless? 

How will you restore the millions to the Treasury of the United 
States, and the millions to the treasuries of the various States of the 
Union, if you deprive them of the brewers' revenue through your 
proposed bills? 

By launching additional taxation on the general public? 

Can you feed the hungry? Clothe the naked? Attend the sick? 
House the homeless ? Educate the children ? Administer to the dying, 
and bury the dead of those whom you seek to deprive of a livelihood? 

1 answer no, a thousand times no. 

Go and investigate for yourselves, Mr. Reformers. Go view the 
glorious charities of the dear, dead Captain Pabst. Go inspect the 
charities of the dead brewer, William Lemp, and the beneficent chari- 
ties of the hundreds of other brewers, living and dead, whom I could 
name, and you will witness their practical. Christian methods of reform 
in the shape of model homes, creature comforts in plenty, considera- 
tion, kindness and happiness, virtue and intelligence among their work- 
men, with the best of educational facilities for their children, and with, 
sobriety and morality as their keynotes. 

Go attend the brewers' yearly conventions, both national and State,, 
in the various cities of the land. Witness their dignity and commend- 
able deportment. Mark their proclaimed patriotism and devotion to 
religion and country. Listen to their proclamations of reform. 
Hearken to their prescribed methods for the suppression of vice, of 
"red lights," of dens of infamy and ill fame, and you will realize and 
comprehend their standard of morals, and their methods of grand,, 
practical. Christian reform, which you will do well to emulate. 



HEPBURN BILL. 1^7 

Mr. Chairmau and gentlemen, right here I ask permission to digress 
and read a few brief extracts on the subject of practical reform from 
the brewers of America, which are filed in the archives of the United 
States Brewers' Association, and were printed in nearly every news- 
paper in the land, but evidently escaped the notice of these reform 
associations and their officers. 

These were the words of Mr. George J. Obermann (the then presi- 
dent of the brewers' association) in June, 1895: 

The brewers of this country will not only be in a position to cheerfully acquiesce 
to any statutes and ordinances tending to regulate the saloon business and ridding 
communities of objectionable places, but will be {)leased to take the initiative in such 
movements. They realize that all favoring certain restrictions are not fanatical pro- 
hibitionists, nor inimical to the brewing industry, nor that they believe that the 
drinking of a ^lass of beer is sinful. They realize, too, that there is an element in 
every community whose opinions are entitled to respect and whose wishes they are 
clad to heed, and while desiring, perhaps, certain restrictive legislation, are vet 
broad-minded, fair people, and not inclined "to reform'' their fellow-citizens with a 
club. 

I am able to state without fear of successful contradiction, that unless there lurks 
behind reform in such directions the hidden scheme, the entering wedge, for sweep- 
ing prohibitory measures (and usually we find that to be the casej, the brewers have 
no where, collectively or singljr, opposed any measure thought right and reasonable 
by the authorities, or good citizens. 

And why should we not feel and act thus? As good citizens we are interested in 
cood government, and peace, and order, and as brewers we feel that we do not need 
disreputable places as an outlet for our product. As brewers of a wholesome, health- 
ful beverage, we feel that we ought to have, and believe do have, right-thinking 
people for our friends. 

Again the moral sentiments of the brewers spoken by President Leo 
Ebert, in June, 1897, at the National Brewers' Convention, in which he 
said: 

Our best achievement during my tenure of oflSce is the marked strides made by 
the brewing mdustry, as a whole, for the elimination of disreputable retailers. 

Again, the sentiment voiced by President Rudolf Brand, when he 
spoke at the national brewers' convention, representing the entirety 
of the industry, these words: 

The most gratifying feature of my administration was the constancy and persist- 
ency displayed by the entire brewing industry in their efforts to prevent the issuance 
of licenses and the sale of our product to discredited places. 

We must, as good citizens, ever strive to crush out these evils. 

President N. W. Kendall, his successor, at the national convention 
in June, 1901, freely voiced the moral sentiments of the brewers when 
he said: 

The brewing industry has made vast strides in the right direction by continuing 
to decline to enter into contracts with resorts of questionable character to act as their 
retailers. 

Our present president, Mr. Joseph Theurer, said, on accepting the 
office in 1903: 

It must be our constant aim to suppress the **red lights" and places of low resort 
which still inhabit our cities. We have made much progress, but must be constantly 
on the alert in this particular. 

The healthy moral sentiments of these gentlemen, representing the 
entirety of the brewing industry, can well be accepted as the standard 
of the brewers of America, and in my humble conviction it is the 
proper class of reform, and will be accepted as such by all thinking, 
judicious men. 



128 HEPBURN BILL. 

Contrast if you will, Mr. Chairman and gentlemen, the distinction ' 
and difference between the sentiments, attitudes, and methods of the 
brewers of America, and the methods, attitudes, and sentiments of 
these associations and their oflScers. 

And these manly men, and their stupendous industry, are what these 
associations are not only seeking to destroy but loualy proclaim and 
advertise, that annihilation of this industry is their sole object, through 
statements and with testimony, every word of which is either garbled, 
distorted, misrepresenting, or manufactured, and without the semblance 
of truth. 

Mr. Chairman and gentlemen, you constitute the judiciary com- 
mittee of the greatest of all legislative bodies, the Congress of the 
United States of America. You are placed here by the voices of the 
people as the representatives of the whole people. You are our judge 
and jury, and we realize that it is for you to decide the merits and 
demerits of the question now before you. We also realize that it is 
your bounden duty to decide between the right and the wrong, and to 
probe to its fullest extent the testimony presented before you regard- 
mg this measure, the Hepburn bill, H. R. 4072. 

It is for you to discriminate between the truth and the untruth; 
between deceit and falsehood on the one hand, and honesty and 
integrity as their opponents. 

Mr. LiTTLEFiELD. Now, I Call your attention to the fact that you 
have not yet told me how these men held that ale, beer, and porter is 
not intoxicating. 

Mr. Harrison. By their investigation; by their evidence to which I 
have referred you. 

Mr. LiTTLEFiELD. You are going to reach that later? 

Mr. Harrison. It forms part and parcel of my entire arraingment 
of facts. 

Mr. LiTTLEFiELD. That is, you will furnish the findings of these 
distinguished scientists to the effect that beer, ale, and porter are not 
intoxicating? 

Mr. Harrison. Yes; not intoxicating in the accepted sense as spir- 
ituous liquors. 

Mr. LiTTLEFiELD. And also the standard by which they come to the 
conclusion that it is not intoxicating? 

Mr. Harrison. Do you claim I made that statement? 

Mr. LiTTLEFiELD. YcS. 

Mr. Henry. Do you mean to say that beer won't make a man drunk ? 

Mr. LiTTLEFiELD. He says that these distinguished men have so 
held and demonstrated, an^ I want to know who they are and the 
standard by which they measure the intoxicating and nonintoxicating 
drinks. 

Mr. Harrison. It is contained in the statements of the expert testi- 
mony and researches relative to this subject contained in the pure- 
food investigation held before the Senate committee. 

Mr. LiTTLEFiELD. Givc me the name of one chemist or one scien- 
tist who undertakes to say that he has demonstrated by analysis that 
beer, ale, and porter are not intoxicating? 

Mr. Harrison. 1 beg your pardon; but I am rather of the impres- 
sion that I did not make that statement in the fullest sense. 

Mr. LiTTLEFiELD. If you did, do you withdraw it? 

Mr. Harrison. No; I do not. 



HEPBURN BILL. 129 

Mr. LiTTLEFiELD. You stick to it. 

Mr. Harrison. No; I want to qualify it. I think my statement 
was that they contained so slight a quantity of alcohol 

Mr. LiTTLEFiEiJ). I do not want to embarrass you. 

Mr. Harrison. I am not embarrassed. 

Mr. GiLLETT, of California. I think he said if a man could hold 
enough it would make him drunk. 

Mr. LiTTLEFiELD. No; he did not say that. In the opening of his 
remarks he made the general assertion that these distinguished men 
had so held. Now, if they have I would like to have him make that 
statement good. 

Mr. Clayton. I understood his remark as vou have stated it. 

Mr. LiTTLEFiELD. That is the way he made it; he said beers, ales, 
and porters were not intoxicating. 

Mr. Harrison. I mean the beers, ales, and porters brewed by the 
brewers of America are absolutely free of impurities. This was my 
statement: 

Allow me, however, here to state that beer is not an intoxicant, as claimed by the 
officers of these associations, and this fact has been proven beyond the question of 
doubt by the most analytical experts in the entire world, by our analytical experts, 
by the investigations and analyses of the Department of A^culture, and by the 
additional testimony of many of the most celebrated physicians and professors and 
savants, given at the pure foods investigation of the United States Senate Committee 
of Pure Foods, and published in the report of that committee. Senate Report No. 
516, Fifty-sixth Congress, first session, demonstrating that the beers, ales, and pjor- 
ters lagered and brewed by the brewers of America are absolutely free of impurities, 
preservatives, or of any ingredients deleterious to health, and, further^ that they 
contain such a small proportion of alcohol as to be justly considered nonmtoxicants. 

Mr. Smith, of Kentucky. And you refer to this Senate document 
as proof ? 

Mr. Harrison. Yes. 

Mr. LiTTLEFiELD. Then I do not understand you to say that these 
men hold that they are nonintoxicating, but your conclusion is that 
they are nonintoxicating? 

Mr. Harrison. Yes, sir; that is my deduction. 

Mr. LiTTLEFiELD. Then we understand each other? 

Mr. Harrison. I am glad you do. Mr. Chairman and gentlemen, 
before I pursue my further statement I would very much Tike to dis- 
tribute some of these documents so as you can follow me in connection 
with this. 

Mr. LiTTLEFiELD. Before you go into that, could you tell me about 
what proportion of the 47,000,000 barrels of beer that are sold are sold 
now by virtue of the provisions of the interstate commerce law? 

Mr. Harrison. I beg your pardon. 

Mr. LiTTLEFiELD. What proportion of the amount of beer now 
being sold is sold by virtue of the provision of the interstate com- 
merce law enabling the brewers to sell in violation of the laws of the 
different States? 

Mr. Harrison. I will answer your question by stating that 1 do not 
acknowledge that the brewers sell in violation of the laws of the vari- 
ous States, to start with. As to number two, it would be a difficult 
matter to determine, and it could not be ascertained minutely to the 
question of a barrel, as to what proportion of beer and ale which are 
distributed. 

H B— 04 ^9 



130 HEPBURN BILL. 

Mr. LiTTLEFiELD. I mean distributed under the circumstances 
described here in connection with the hearing. 

Mr. Harrison. It would be impossible for me to tell, but I can pos- 
sibly get those figures. 

Mr. LiTTLEFiELD. 1 would be glad if you would do it and put it in 
the hearing. 

Mr. Harrison. I will be glad to do it. 

Mr. LiTTLEFiELD. For what purpose do you wish us to look at 
Document 159, which you have distributed — that is, what is the object 
of this exhibit? 

Mr. Harrison. No. 150 is entitled, ^' Moral legislation in Congress, 
passed and pending." 

Mr. LiTTLEFiELD. This is 159. 

Mr. Harrison. That is the American Anti-Saloon League? 

Mr. LiTTLEFiELD. YcS. 

Mr. Harrison. I desire to call your attention to the sixth paragraph 
in connection with that, but previous to that, it is all in sequence, if 
you will allow me in my own way to continue 

Mr. LiTTLEFiELD. Take your own way. 

Mr. Harrison. Thank you. 1 respectfully invite your attention to 
Exhibit B, entitled "Moral legislation in Congress passed and pend- 
ing." This is Senate Document No. 150, Fifty-eighth Congress, second 
session. On page 8, second or third paragraph, under the caption 
"Interstate liquor bills," occurs the following: 

Next in logical order should come the two "states' rights" bill to 
protect State liquor laws of all kinds against outside nuUifiers, acting 
under Federal powers of interstate commerce and internal revenue. 

The Hepburn-Dolliver bill (H. R. 4072; S. 1390), originated by the 
Iowa Anti-Saloon League, improved by the National Anti-Saloon 
League, with proposed amendment of the Reform Bureau in italics. 

On the same page (8), same exhibit (BJ, under the caption " German- 
Americans and the Hepburn bill," the lollowing statement occurs: 

At the first hearing of the bill, January 20, 1904, all the opposition was made in 
the name of German- Americans, of whom thousands had been deceptively marshaled 
by the brewers to defend their ** speak-easy'* trade. Many of these opposers are 
law-abiding men, who do not know that it is anarchy and not liberty which they 
have been called to defend. 

On page 9, second paragraph, the following statement is made: 

The Reform Bureau is cooperating with the Anti-Saloon League, W. C. T. U., and 
the National Temperance Society in pressing this important measure ( Hepburn, H. R. 
4072) to enactment. Besides numerous syndicate articles in the press, and platforna 
appeals the bureau has sent out more than 50,000 documents and petition blanks in 
promotion of this bill. 

On the same page (9), fourth paragraph, occurs the following: 

To stop the issuing of Federal liquor tax receipts in no-license territory. New 
Humphreys bill, H. R. 11824, introduced by Hon. B. G. Humphrey, M. C, at the 
request of the Reform Bureau. 

On page 10, first paragraph, is the following: '^ Proposed prohibi- 
tion for tne ' Indian country ' in Alaska," amendment to be proposed to 
S. 3340, to prevent the licensing of saloons in Alaska, except where 
white people constitute the majority of the population. 

On page 10, fifth paragraph, occurs the following: '^National 
Inquiry Liquor Commission." National Temperance &)ciety's Gal- 
linger liquor inquiry commission bill (S. 3289) providing for commis- 



HKPBUBN BILL. 131 

sion of seven persons appointed by the President to investigate the 
liquor traffic and its effects, the legal methods of restraint, and with 
Eeform Bureau amendment in italics. 

On page 11, seventh paragraph, under the caption: "Bills in 
Defense of the American Civil Sabbath." To close Lewis and Clark 
Portland Exposition of 1905, on Sunday. Haw ley amendment (S. 276). 
appropriating monej for the Lewis and Clark Exposition be, ana 
hereby is, amended in section 25, so as to read. 

On pages 15, 16, and 17, I invite your attention to the article and 
exhibits under the caption: "The sacred right of petition." On page 
17 under the caption: "Local reform work of the bureau." 

Third paragraph, I call your attention to statement: 

Millions of petitions and practical reform documents have been sent to reform 
leaders and workers everywhere, reaching every city, village, and borough of the 
United States and every foreign land. 

On page 18 under the caption, ^'Not a Government Bureau," I call 
attention to the first line reading — 

Some suppose the reform bureau is one of the official bureaus of the Government. 

On page 7, this same exhibit, I call your attention to the last four 
paragraphs under the caption, "Bills in restraint of intoxicants and 
opium," ''To prohibit liquor selling in all Government buildings. 
(McCumber-Sperry bill S. 2352, H. R. 7034.)" 

The argument for this bill will be found in Senate document 379, 
Fifty -seventh Congress, first session and may be had of any Senator. 

On nineteenth page you will note the line, " McCumber-^erry bill." 

Exhibit "C." 

I beg to call your attention to Exhibit "C," entitled "American 
Anti-Saloon League." Senate document 159, Fifty-eighth Congress, 
second session. 

You will find on the second page of said document, sixth paragraph, 
the following statement: 

In my last report, December 10, 1902, almost with the opening of Congress, I 
stated that as soon as the convention was over I would immediately take up the 
Hepburn bill, get it into shape, and undertake to crowd it through. 

Mr. Chairman and gentlemen, the two exhibits, viz, "B" and ^'C," 
which I have placed before you, I maintain and will prove, establish 
the fact that the measure now before you for consideration entitled the 
Hepburn bill, H. R. 4072, and all of the other bills mentioned in these 
extraordinary exhibits, ''B" and "C," entitled "Moral legislation in 
Congress, passed and pending," and "Anti-Saloon League," emanate 
from said societies and their officers, as proven by the language con- 
tained in said Exhibits '^ B" and " C." 

I further claim that the exhibits which I am now about to place 
before you, viz: 

"D," "E," "F," "FF," "G," "H," ^'I," all of which contain mis- 
statements, fabrications, and absolute falsehoods, and all of which were 
circulated in conjunction with Exhibits '^A" and "AA;" that said 
Exhibits "D," "E," "F," "FF," "G," "H," and " I," with all of 
their misstatements and fabrications, were used as a lever in conjunc- 
tion with Exhibits "B" and "C" to secure signatures to Exhibits "A" 
and "AA" (petitions), and thereby falsely creating sentiment, and 



132 HEPBURN BILL. 

falsely influencing legislation in favor of the reporting and passage of 
said Hepburn bill, EL R. 4072. 

I, therefore, maintain that all of the exhibits now placed before you 
are cumulative and corroborative evidence of the statements I have 
made, and part and parcel of the testimony which I am about to oflfer. 

Exhibit "D." 

I beg to call your attention to Exhibit '^D," entitled ''Hearing 
before the Committee on Immigration of the U. S. Senate." Senate 
document 379, Fifty-seventh Congress, first session. 

This was the testimony, Mr. Chairman and gentlemen, given by the 
members of these associations before the Committee on Immigration 
of the Senate, on the bill S. 3969, entitled ''To prevent the sale of 
intoxicating liquors in immigrant stations and other public buildings." 

On the strength of the false testimony given at this hearing the sale 
of beer was excluded from the immigrant stations throughout the 
country. 

The same false testimony given at this hearing is now being used in 
the various exhibits placed before you, for the purpose of creating 
sentiment and influencing legislation in all measures introduced against 
the brewing industry of America, and particularly directed and used 
hj distributing said false testimony by the millions "in every city, 
village, and borough of the United States and every foreign land," to 
influence legislation, and "crowd" the Hepburn bill, H. R. 4072, 
through. 

Mr. Palmer. Which particular testimony do you refer to as false? 

Mr. Clayton. In this document. 

Mr. Harrison. I will demonstrate that to you. Very nearly all 
of it. 

Mr. Clayton. I wish you would take some specific thing 

Mr. LiTTLEFiELD. File a bill of particulars. 

Mr. Clayton. Yes; file a bill of particulars, so we will know what 
you are driving at. You have been promising to shock us, now we 
are ready to be shocked. 

Mr. GiLLETT of California. I would like to ask whether you think 
it is against the merits of the bill that the people who are in favor 
of it have been industrious in bringing it before Congress? 

Mr. Harrison. No, I do not claim tnat; but I claim that the greater 
portion of the sentiment that has been aroused in Congress in favor of 
the bill and the majority of these petitions have been gotten up 
through falsehoods. 

Mr. LiTTLEFiELD. If it does not embarrass you, give us a sample of 
the falsehoods. 

Mr. Clayton. In this Senate Document 379, to which you have 
referred, I would like to see some of the falsehoods in that. 

Mr. Harrison. Yes, sir. 

Mr. LiTTLEFiELD. If it is not embarrassing. 

Mr. Harrison. It is not half as embarrassing to me as it will be for 
some of these witnesses, as y^ou will see. On page 8 of Exhibit D you 
will find under the caption "Statement of Mrs. Ella M. Thatcher," 
who is superintendent of the department of soldiers and sailors in the 
National Woman's Christian Temperance Union, the following: 

We found at Marion no saloon; in the other homes most of the men looked like 
paupers and many of them like drunkards, which they really are. They ought to 



HEPBURN BILL. 133 

be in an inebriate asylum. They should not be mixed up with the better class of 
meui As for the claim that the canteen on the inside drives the dives from the out- 
side, there are but 12 saloons about the Marion canteenless home, while there are 
97 that beside the Hampton home, which has put a canteen inside to banish them. 

Mr. LiTTLEFiELD. You Say that they found saloons in Marion and 
they say they did not? 

Mr. Harrison. I beg your pardon. 

Mr. LiTTLEFiELD. That is what you read, ''We found in Marion no 
saloons." 

Mr. Harrison. No; they stated that there were 97 that besieged 
the Hampton Home. 

Mr. LiTTLEFiELD. Are there or not that many? 

Mr. Harrison. Only 31. 

Mr. LiTTLEFiELD. lou have been there? 

Mr. Harrison. Yes; and here is the testimony of the Soldiei's' 
Home governor, the sworn testimony of the clerk of Phoebus, and 
the sworn testimony of the Commissioner of Internal Revenue, and 
the statements of the mayor of the town of Phoebus. 

Mr. LiTTLEFiELD. That is where the Hampton Home is situated? 

Mr. Harrison. Yes. 

Mr. Palmer, Where is this place? 

Mr. Harrison. Hampton, V a. 

Mr. Palmer. This is the statement of Mrs. Ella M. Thatcher? 

Mr. Harrison. Yes, sir; and the Rev. Dr. Crafts and others. You 
are knocking me out of the continuity of my statement, but we can 

get there just the same. On page 9, last paragraph, and page 10, 
rst paragraph, of Exhibit D, you will find the following testimony: 

We are told that the saloon inside prevents the men from going outside. I said to 
the late Governor Woodfin about two years ago: 

"You tell me that the saloon inside prevents the men from going outside? When 
the saloon was put inside there were six saloons outside at Phoebus; now there are 
97. How is it that all these saloons have accumulated outside if the saloon inside 
prevents the men from going outside?" He shrugged his shoulders and said: "Oh, 
that is a conundrum. Do not ask me." Phoebus, where these 97 saloons are located, 
has 1,200 inhabitants. 

Now, gentlemen, if you will permit me, please, to return to the 
continuity — or do you desire me to demonstrate these things and 
eliminate that? 

Mr. LiTTLEFiELD. Proceed in your own way. 

The Chairman. Take your own way. 

Mr. Harbison. Thank you. Here is the affidavit of the clerks. 

Mr. LiTTLEFiELD. When were you at Phoebus? 

Mr. Harrison. 1 have been there thirty or forty times in toy life. 

Mr. LiTTLEFiELD. This relates to two years ago. 

Mr. Harrison. 1900. The clerk certifies in the year 1900 there 
were '47 licenses granted; in the year 1901 there were 45 granted; 
in 1902, 37 retail liquor licenses; m 1903 there were 31 retail liquor 
licenses granted. 

Mr. LiTTLEFiELD. Do you want us to understand that that is con- 
clusive evidence of the number of saloons? 

Mr. Harrison. Yes, sir. 

Mr. LiTTLEFiELD. I should think not. How many were there 
unlicensed in that vicinity? 

Mr. Harrison. None. 

Mr. LiTTLEFiELD. Nouc Unlicensed? 



134 HEPBURN BILL. 

Mr. Palmer. You mean there were no places selling without a 
license? 

Mr. Harrison. Hardly, in the State of Virginia, where the law is 
so strict and positive. 

Mr. LiTTLEFiELD. I can say that I have found the contrary to be the 
fact across the river here in Virginia. That may be, however, a fact 
that is not a fact from your point of view. 

Mr. Henry. It seems to me 31 would be enough for a town of 1,200 
people. 

Mr. Clayton. Ninety-seven may have been a slight exaggeration of 
tKe truth. 

Mr. Smith, of Kentucky. Oh, she just missed it by 60. 

Mr. DiNWiDDiE. 1 would like to ask if any misstatement of fact has 
been found in any document with which our name has been identified. 
We have been very careful during the past four vears, and we would be 
very glad to have it brought to our attention if tte Anti-Saloon League 
has been identified with any misstatement of fact. 

Mr. Crafts. May I, in behalf of the Reform Bureau 

The Chairman. I think you had better wait. 

Mr. Crafts. I simply want to ask for specific statement. My im- 
pression is that that is a misprint. I was at the hearing. 1 would 
not state it positivelv as to wnat Mrs. Thatcher's statement was. 

Mr. Harrison. This is simply one statement, and it is possibly the 
least. 

Mr. LiTTLEFiFLD. Take the next in degree, then. 

Mr. Harrison. If you will allow me to continue 

Mr. LiTTLEFiELD. Certainly. 

Mr. Harrison. I can demonstrate that my claims are well grounded. 

On page 25, Exhibit D, under the caption, ''Additional statement 
of Rev. Wilbur F. Crafts, Ph. D.," twelfth and thirteenth para- 
graphs, and on the second page in the pamphlet, Exhibit E, fourth 
and fifth paragraphs, you will note the following testimony. 

Mr. Clayton. But I have not got that here. 

Mr. Harrison. It is a reproduction, or very nearly a reproduction, 
of Exhibit D, on which the map occurs — ^the supposed map — on page 6. 

Mr. LiTTLEFiELD. What is it on page 25? 

Mr. Harrison (reading): 

One aspect of the canteen in soldiers' homes has not been sufficiently emphasized, 
namely, that idleness and a credit system of checks, both evils themselves, greatly 
foster the larger evil of almost constant tippling. 

The old soldier can get a hundred credit checks, representing 5 cents apiece, to be 
paid for out of the pension money not yet received. He can not buy anything but 
beer with them, so that the debt habit as well as the drink habit is encouraged. 

Mr. LiTTLEFiELD. What is there about that? 

Mr. Harrison. I desire to present, in refutation of this statement, 
the following letter from Mr. Beeson, the acting governor of that 
Home. 

Mr. Henry. That was Mr. Crafts's statement you were reading 
from? 

Mr. Harrison. Yes; I quoted from the testimony of Mr. Crafts. 

Mr. LiTTLEFiELD. This is a statement that refers to soldiers' homes, 
generally. Now, what is it you present to show that the general 
statement is not true? 

Mr. Harrison. The testimony of the commandants of the various 



HEPBUBN BILL. 135 

Homes throughout the country, and the fact that no credit system 
exists. Further, that there is no chance at all for the old soldier to 
get credit and pay for this beer out of the pension money not yet 
received. The law of the United States Government prohibits the 
pawning of pension money. There is probably no asset to-day that is 
so thoroughly protected as the asset of the pension of the old soldier. 

Mr. LiTTLEFiELD. This is not a charge that the pension is trans- 
ferred to anybody. 

Mr. Hakrison. Possibly not. 

Mr. LiTTLEFiELD. No possibility about it — clearly not. There is no 
such suggestion. What is your first certificate that you have from 
somebody that shows that that statement is false? 

Mr. Harrison (reading): 

(Central Branch, National Home for Disabled Volunteer Soldiers. Governor, 

Col. J. B. Thomas.) 

National Military Home, Ohio, February ^4^ 1904* 
Maj. Duncan B. Harrison, 

7 IS Colorado Building, Washington, D. C. 

Dear Sir: I have received yours of the 20th instant in relation to statements made 
before Senate Committee United States Senate, about sale of beer at this Central 
Branch N. H. D. V. S., and in replying will take up the statements in the order 
given. First statement: '^Isaid to the guard: * How many drinks may they have?* 
(of beer). He said: * Just as many as they call for and have the money to pay for.' " 
This statement is very misleading, as unlimited permission to purchase beer is 
allowed only to those members who are careful not to take more than they can. carry. 
Many members are debarred entirely from the beer hall, and others are restricted as 
to the number of glasses they can have in any one day. 

Second statement: **I said, 'If thev have hot the money to pay for them, what 
then?' He said : * We give them checks; then it is taken out of the pension money. ' * * 

Third statement: The ** soldier can get a hundred credit checks representing 5 
cents apiece, to be paid out of pension money not yet received. He can not buy 
anything but beer with them, so that the debt habit, as well as the drink habit, is 
encouraged." 

Both of these statements are absolutely false. The only checks in use in this 
Branch are sold at the beer hall by the cashier for cash only, and only checks are 
accepted for beer. These checks can be used in the purchase of beer, sandwiches, 
and cigars that are sold in the beer hall, but can not be used outside of the beer hall. 

The statement that either the debt or the drink habit is encouraged is not only 
false, but apparently maliciously false. 

You are at liberty to use any statements contained in this letter in any way you 
may think best for the interest of the National Home. Your letter of 22d ins&mt 
was received this morning, and I inclose herewith ten copies of each of the papers in 
relation to sale of beer, to which you refer. 

Very respectfully, J. B. Thomas, Governor. 

That is the Dayton, Ohio, Home, where they claim these scenes were 
enacted. 

Mr. LiTTLEFiELD. The document does not claim that, but probably 
that is your view of it. The document is a general statement. 

Mr. Harbison. That is Mr. Baily's statement that I quoted, gentle- 
men. 

Mr. LiTTLEFiELD (after examination of one of the exhibits referred 
to). This does not relate td that at all. 

Mr. Habrison (reading): 

I have received yours of the 20th instant in relation to statements made before the 
Senate committee about the sale of beer at this central branch. * * * This 
statement is very misleading. 



136 HEPBURN BILL. 

Mr. LiTTLEFiELD. But this letter does not come from the guard 
who is alleged to have made that statement. You can not contradict 
the man that made that statement by the statement of the governor 
of the Home. 

Mr. Harrison. But they made that statement as coming from the 
guard, and there is no such condition there. 

Mr. LiTTLEFiELD. That is your statement, but where is the proof? 
Startle us with it! 

Mr. Harrison. I will, eventually. There is another letter: 

(Central Branch National Home for Disabled Volunteer Soldiers. Governor, Ck)l. 

J. B. Thomas.) 

National Military Home, Ohio, February 26^ 1904' 
Referring to the statements made by Col. J. B. Thomas, governor of this Central 
Branch, N. H. D. V. S., in his letter to you of the 24th instant, in answer to certain 
statements made before a committee of the United States Senate relative to the sale 
of beer at this Branch, we, the undersigned officers of said Branch, desire to express 
our hearty concurrence in the governor's statements in said letter. 
Very respectfully, 

A. J. Clark, Treasurer. 

D. C. Huffman, Surgeon. 

W. H. Orts, Quartermaster. 

John W. Byron, Commissary, of Subsistence. 

Carl Berlin, Assistant Adjutant- General. 

A. S. Galbraith, Inspector. 

H. A. McDonald, Chaplain. 

Rev. B. F. Kuhlman, D.D., Chaplain. 

Mr. LiTTLEFiELD. Where is that from, Dayton? 

Mr. Harrison. Yes, sir. 

Mr. DiNWiDDiE. Mr. Chairman, I feel I should make one request 
without interfering with the proceedings. I have not been able to get 
at the fact whether the statements of Mr. Baily have been successfully 
impunged. Mr. Bail^^ is not here, and on account of his absence I want 
to say that I happen to know that Joshua M. Baily is one of the most 
reputable citizens of Pennsylvania, and has been known as such for 
several decades. 

He is one of the large merchants of that city, and is a man whose 
word goes everywhere in the city of Philadelphia, and among the 
Society of Friends, and the people who know him generally. If it 
has come to the point where there is any seeming impugning of that 
statement of Mr. Baily I would like to be informed, so I can bring it to 
his attention. Mr. Baily is not here, or of course 1 would not make 
this statement. 

Mr. Harrison. These statements that are made here as to the inter- 
rogation of the guard are by Mrs. Thatcher, repeated by Doctor 
Crafts, and these positive, absolute statements by Mr. Crafts and Mrs. 
Thatcher Mr. Baily absolutely contradicts and flatly proves to be false 
in every particular, and contained in this statement. If you will 
allow me, please, to continue in sequence we will get alonff much 
faster, and I think I will be able to make myself and mjr case clear. 

Mr. Clayton. I think in justice to Mf*. Harrison, inasmuch as we 
have catechised him so much, we ouffht to give him any reasonable 
time he desires. I want to be shocked if he has that sort of evidence. 

Mr. Henry. Yes; we ought to let him proceed. 

The Chairman. Yes. 



.HEPBURN BILL. 137 

Mr. Harrison. Thank you, gentlemen. Here is a letter from the 
governor of the Home at Hampton. 

(Southern Branch, National Home for Disabled Volunteer Soldiers. Governor, 

Col. Wm. Thompson.) 

National Soldiers* Home, 
Elizabeth City County, Va., February ^Sj 1904* 
Maj. Duncan B. Harrison, 

Room 7 IS, Colorado Building, Washington, D, C, 

Dear Sir: I have to acknowledge receipt of your letter of the 20th instant in 
reply to mine of the 10th, and I must say that my blood boils with indignation at 
the absolutely false statements made by people who profess to labor in a good cause. 

Statement No. 1. When the saloon was put insid!e there were 6 saloons outside 
at Phoebus. Now there are 97. Phoebus, where these 97 saloons are located, has 
1,200 inhabitants. 

Answer. When beer was first sold in the Home there were about 500 members in 
the Home, and there was no town of Phoebus except the 6 saloons mentioned, 
together with a half dozen dwellings and a grocery store. At present Phoebus has a 
population of 2,000, and the Home has neany 2,900 members present. 

Statement No. 2. "I said to the guard, *How many drinks may they have?' He 
said * Just as many as they call for and have the money to pav for.* I said, 'If they 
have not the money to pay for them, what then?* He said, ^We give them checks, 
then it is taken out of their pension money.* *' 

Answer. It is not known by me that any Home, at any time, ever allowed its 
members to drink all the beer they could pay for; that no such loose method was 
ever practiced at this Branch. There was a system of giving credit in vogue at this 
Branch some twenty-five years ago, but it is absolutely false and malicious to repre- 
sent that any such custom has prevailed here since. As to the issuing of checks and 
charging to future pensions, no credit of any kind can be obtained at this Branch 
for anyming whatever. 

Statement No. 3. "The old soldier can ^et a hundred credit checks, representing 
5 cents apiece, to be paid out of the pension money not yet received. He can not 
buy anything but beer with them, so the debt habit, as well as the drink habit, is 
encouraged.** 

Answer. Words fail me to express my indignation that so reckless a falsehood 
should not only be put forth, but actually sworn to. 

I desire to say that the temperance people, in making comparisons between this 
and the Marion Branch, have not stated the case fairly, as the Fort Monroe gar- 
rison numbers at least 700 men, to whom the saloons of Phoebus are almost as close 
as they are to this home; besides which, there is a large number of merchant sailors, 
to say nothing of the men of the Navy, constantly present in Phoebus, and yet there 
are but 31 saloons. 

Inasmuch as there are nearly 2,900 members ** present** at this Branch, and 1,853 
"present** at the Marion Branch, which said Branch is protected with a State law 
prohibiting saloons within 1 mile of the Home, it is not a very happy comparison 
to hold this Branch up as a horrible example of the influence of the canteen upon 
conditions outside of the Home—Marion being located by the side of a very quiet 
inland city. 

As showing how far the canteen affects the morality of the Home, I will make this 
statement: That in the summer of 1899 an epidemic of yellow fever broke out in the 
Home — the Home was quarantined with a guard armed with shot guns, from the 29th 
day of July to the 10th day of September — a period of six weeks, during which there 
was not a single arrest among all the nearly 3,000 members then present for drunken- 
ness, for fighting, or for any misdemeanor whatsoever; and that there has been no 
corresponmng period within ten years when the arrests for these offenses have not 
amounted to 200; and also, more beer wsis then sold in the Home than in any 
corresponding period of that year. 

I have no doubt that the real, practical, temperance people will be rejoiced to 
learn these facts. 

Very respectfully, Wm. Thompson, Governor. 

Mr. Littlefield. Now, repeat the statement in that letter where 
he denies that checks were delivered on credit. I did not get that 
exactly. Please look over the letter and see that. 



138 HEPBURN BILL. 

Mr. Harbison. Statements. ''The old soldier can get a hundred 
credit checks, representing 5 cents apiece, to be paid out of the pen- 
sion money not yet received. He can not buv anything but beer with 
them, so the debt habit, as well as the drink habit, is encouraged." 

The answer to that is: "Words fail me to express my indignation 
that so reckless a falsehood should not only be put forth, but actually 
sworn to." 

Mr. Palmer. That first statement is quoted from Doctor Crafts? 

Mr. Harrison. Yes. • 

Mr. LiTTLEFiELD. The letter quotes the statements which you have 
quoted, and then makes reply? 

Mr. Harbison. Yes; tlje governor makes specific answers to each 
statement made. 

Mr. LiTTLEFiELD. Do vou Understand that his assertion — the answer 
of the governor of that Home — applies to all or is that answer simply 
applicable to statement number three? 

Mr. Harrison. I should understand that the last statement applies 
to the first. 

Mr. LiTTLEFiELD. He goes on then to specifically answer some of 
the other propositions, but it does not make any specific answer to the 
credit system statement. 

Mr. C^Irafts. May 1 say for Mrs. Thatcher and Mr. Baily that I have 
simply quoted what they say; I have summed up what they have said. 
Mr. fiaily went to every Home except one in California, and Mrs. 
Thatcher visited the Homes. 

The Chairman. That you can explain when you reply. 

Mr. Harrison. If any further evidence is required to demonstrate 
the absolute untruthfulness of their testimony, I respectfully call your 
attention to lines 7 and 8, page 16, Exhibit D, under tlie caption: 
"Statement of Mr. Joshua L. Baily," their own witness, who has been 
so praised for his integrity by Doctor Dinwiddie, which reads: 

The sales are for cash only; no one can buy for credit. 

That contradicts Mr. Crafts and Mrs. Thatcher's statement. 

Mr. LiTTLEFiELD. That is his statement in relation to Hampton, Va 



Mr. Harrison. Both Mrs. Thatcher's statement and Dr. Crafts" 



statement were in relation to the Dayton Home, which you will find 
on page 9, seventh paragraph [reading]: 

I said to the guard, *'How many drinks may they have?" He said, "Just as 
many as they call for and have the money to pay for." I said, "If they have not 
the money to pay for it, what then?" He said, "We give them checks; then it is 
taken out of their pension money." 

Now, the second statement of Mr. Baily, part of the third para- 
graph, pagiB 17, Exhibit D, reads: 

I found, under special appointment of the governor, a man on guard — 

That is apparently the same man on guard that answered the ques- 
tion of Mr. Crafts and Mrs. Thatcher — 

who had a list or roll of the names of all of those who on account of drunkenness 
were either limited as to the number of glasses of beer thejr might have or were 
totally prohibited, and it was made his duty to see that his limitations or prohibitions 
were strictly observed. But I learned from him that excepting as to these (the 
number of whom was not great) there was no restriction so long as a man was not 
disorderly, and gave no visible token of being intoxicated he was permitted to have 
all he was able to pay for. 



HEPBUBN BILL. 139 

1 also call attention to the third paragraph on page 18, Exhibit" D," 
last two lines, as follows: 

" Won't you sell them beer on credit?'* I asked. " Oh, no; we are not allowed to 
sell except for cash." 

Also the last three lines: 

They paid their money to the cashier, who gave to each a ticket of the value of 5 
cents, which they handed to one or other of the bartenders, and each getting his 
mug of beer passed on to the other end of the building and outside. 

Also the fifteenth and sixteenth lines in third paragraph, page 19, 
Exhibit ''D," same witness, which read: 

There is practically no restriction as to the quantity, so long as they can pay for it 
and not become so intoxicated as to be disorderly. 

Thus you will see, Mr. Chairman and gentlemen, out of their own 
mouths they are convicted and proven to be falsifiers. 

There never was a credit-check system at any of these Homes since 
the year 1892, over twelve years ago, and that check S3^stem existed 
only in one Home, and that was the Northwestern Home in Milwaukee 
County, Wis. 

The debt habit was not only discouraged, but has not existed since 
that period, and the statements of these so-termed "reform" associa- 
tions were made before the Senate Committee on Immigration in 1902, 
and they state in their testimony that their experiences at these Homes 
were had within a few brief months, even days preceding the giving 
of said testimony before the Committee on Immigration of April 23, 
1902. 

The drink habit which these witnesses, officers of these associations, 
stated existed during the period of 1902, and which they claim was 
encouraged, has by the testimony of the governors of the various 
Homes, and their own witness, Mr. Joshua L. Baily, been proven to 
be manufactured statements out of whole cloth. 

The drink habit has always been properly supervised and restricted 
by the sterling gentlemen and their fellow-officers who have the con- 
duct of these Homes in their safe-keeping. 

The drunkenness which they state existed, and according to their 
representation was almost perpetual, existed only in their own elastic 
and inflamed imaginations. 

The pensions of our veterans, as you gentlemen know, and as I know, 
are protected more amply by our laws than any other asset owned by 
man. 

Pensions, as we all know, are exempt from attachment, can not be 
levied on, and it is unlawful to anticipate them. 

According to our laws the officers of the Home and the veterans 
themselves would be violators of the law if they attempted to pawn 
their pension vouchers, yet these associations and their officers have, 
through millions of pamphlets, misrepresentations, and downright 
falsehoods, striven to mate the public believe, and you, gentlemen, 
believe, that the officers and gentlemen conducting these Homes and 
the old veterans of our country countenance violations of the law. 

Mr. Chairman and gentlemen, is it not a sad commentary that these 
associations and their officers will unblushingly manufacture such fear- 
ful distortions of the truth and slander the decrepit battle-scarred 
veterans of all the wars of our country in order to achieve results 



140 HEPBURN BILL. 

which they seek to redound to their own self-aggrandizement and self - 
emolument. 

Yet, gentlemen, these are onljr two specimens of the millions of 
pamphlets which they are, according to their own statement, distribut- 
mg broadcast "in every city, village, and borough of the United States 
and every foreign land," in order to influence legislation, deceive Con- 
gress, and '' crowd " the Hepburn Bill through. 

Mr. Chairman and gentlemen, you will note the diflference in the 
actual number of saloons which really exist at Phoebus, 31, and that 
they testify existed, 97, is precisely 66, an exaggeration of just 207 
pjercent; but that is not a very great exaggeration for these associa- 
tions and their officers to make, as I will aemonstrate to you. 

I beg to call your attention to the map contained on page 6 of Exhibit 
D and the front page of Exhibit E. This map is supposed to be a 
reproduction of the Soldiers' Home, termed the Northwestern Home, 
in the suburbs of Milwaukee, Wis. You will note how carefully these 
two exhibits, issued by these associations and their officers, are skele- 
tonized, and 1 appeal to vour judgment that you, gentlemen, or any 
man or woman in the land, would naturally conclude from their maps 
in these exhibits that the entirety of the environments surrounding the 
Milwaukee Home consisted of nothing but saloons, and that the rest 
of the territory was vacant ground. 

You will note that the map exhibited in evidence on page 6, Exhibit 
D, shows 51 saloons within a half-mile radius of the liome, but its 
reproduction in Exhibit E, of which ''millions have been distributed 
to crowd the Hepburn bill through," shows 53 saloons. 

This is only an increase of 4 per cent on those millions of distributed 
maps, and 4 per cent is a trifling matter, still we are all seeking for 4 
per cent on our investments, and are inclined, naturallj^, to regard 
4 per cent as a serious proposition, particularly when involving an 
industry of the magnitude of the brewers', and the happiness, welfare, 
and creature comforts of the men who fought the wars of our country, 
besides 4 per cent in saloons would represent an investment of many 
thousands of dollars. 

Yet this proven misrepresentation has been circulated among the 
millions of other false and misleading propaganda to influence legisla- 
tion and '' crowd the Hepburn bill through " and take the post exchange 
away from the Soldiers' Homes, and drive the veterans to seek the dens 
of infamy which these associations state surround those institutions. 

Allow me to call your attention to the language accompanying this 
map, given as evidence before the Senate Committee on Immigration, 
and printed on pa^e 5, last paragraph, Exhibit D, and third paragraph, 
second page. Exhibit E. 

Instead of a beer canteen keeping evil places away from the Soldiers' Homes, 
saloons and dives gather like a besieging host about the Homes, as shown in our 
diagram of the Milwaukee's Home environment, which could be duplicated from 
every Home with a canteen. The Home that has the fewest outside dives is the one 
at Marion, Ind., which has no canteen. 

You will note on these maps that none of these alleged extend 
beyond a distance of more than four blocks from the said soldiers' 
home. Ergo, they are unquestionably within the distance of half a 
mile from tne Home. 

I beg to submit this extract from a letter of Col. Cornelius Wheeler, 
governor of said Home. 



HEPBURN BILL. 141 

The balance of the letter does not concern this particular bill. 

National Home, Milwaukee County, Wis., 

February 18, 1904. 
Maj. Duncan B. Harrison, 

713, 714 Colorado Building, Washington, D. C. 
Sir: Replying to your letter of the 14th, I have to say that there are 41 saloons 
within one-half mile of these Home grounds. 

Yours, truly, Cornelius Wheeler, Governor. 

You will note, Mr. Chairman and gentlemen, that there is a little 
discrepancy in the statements of these associations with the true facts 
vouchsafed by the sterling governor of the Home, Col. Cornelius 
Wheeler, whose reputation for veracity and integrity no one dare 
question. 

Just a difference of ten saloons as per map contained in Exhibit D, 
and twelve saloons as per map contained in Exhibit B — 20 and 24 per 
cent — but that is a mere trifle with these Christian reform associations 
and their officers. 

Allow me to present in evidence this letter from the very honorable 
Rudolf Brand, formerly president of the United States Brewing Asso- 
ciation of America, now president of the United States Brewing 
Company of Chicago: 

First National Bank Building, 

Chicago, February 16, 1904. 
Duncan B. Harrison, Esq., 

WaMngton, D. C. 

Dear Mr. Harrison: In response to yonr request I have carefully investigated the 
saloon situation in the vicinity of Soldiers' Home in Milwaukee. 

I find that, approximately, fiftv saloons are located near the Home, but about 
seven blocks west of the Home the Allis-Chalmers shops, the largest engine works 
in the United States, employing 3,800 men, is located. Northeast of the Home, 
only one-quarter of a mile away from it, are located the main shops of the C, M. & 
St. P. Rwy., employing 5,000 men. Adjoining the Home are the largest stone quar 
lies of the State of Wisconsin, employing a great number of men. Five or six other 
large industrial establishments are direcuy west of the Home. National avenue, the 
mam thoroughfare on the south side of Milwaukee, on which most of the saloons are 
located, is almost exclusively used hy these workmen in going to and from work; 
also by the great number of people visiting the Home daily. If these saloons would 
be dependent on the patronage of the inmates of the Soldiers' Home alone, they 
could certainly not exist, and I am sure that nine-tenths of them at least would have 
to go out of business. 

Truly yours, Rudolf Brand. 

Let me present for your consideration a correct map of the Soldiers' 
Home in Milwaukee, Wis., showing its exact location and its true 
environment: 

And inasmuch Mr. Chairman and gentlemen as the false maps shown 
in Exhibits ''D" and "E" have been circulated by the millions '*in 
every city, village, and borough of the United States and every foreign 
land " to deceive the people, to deceive the great Congress of our 
country, to influence legislation, to "Crowd" the Hepburn bill (H. R. 
4072) and other measures inimical to the great brewing industry, 
inimical to the battle-scarred veterans of our country, inimical to 
mortality, decency, law, order, and truth, and that these deceptive 
maps have been by machinations dignified as senatorial documents, I 
ask most respectfullv, in the name of justice, that this map, this true 
map, may be printed as part of the testimony before this committee, 
in order to in some measure undue the great wrong imposed upon us 
by these associations and their officers. 



•142 HEPBURN BILL. 

You will note, Mr. Chairman and gentlemen, that the correctness of 
this map is attested and sworn to by the following representative 
gentlemen, and that said attestations and affidavits form part and par- 
cel of this exhibit: 

Mii,WATJK^Ey Wis. f Febrvxiry ^6 y 1904, 
To whom it may concern: 

I, the undersigned, hereby certify that this map be signed for the purpose of showing 
the proximity of manufacturing plants and residence districts to the -National 
Soldiers' Home, near Milwaukee, Wis., is substantially correct. 

Cornelius Wheeler, Governor NatUmal Home, 
BoRCHERT Malting Co., 
By Ernest Borchert, Preddent, 
The Falk Company, 
C. L. Jones, Assistant Secretary. 
W. H. DoDswoRTH, General Agent C.,M.<Sc St. P. Ry. 
Pawling & Harnischpeger, 
Per H. Harnischpeger. 

State op Wisconsin, Milwaukee County^ ss: 

On this 26th day of February, A. D. 1904, personally appeared before me, a notary 
public in and for the county of Milwaukee and State of Wisconsin, Cornelius 
Wheeler, Ernest Borchert, C. L. Jones, W. H. Dodsworth, and H. Harnischfeger, 
each personally known to me, and in my presence signed the foregoing certificate in 
the capacity, manner; and by the authority as shown and appearing. 

[seal.] Edw. F. Byron, 

Notary PubliCj Milwaukee County j Wis. 

My notarial commission expires September 5, 1904. 

Let me present this letter from Mr. Jos. E. Uihlein, vice-president 
of the Schlitz Brewing Company, Milwaukee: 

Milwaukee, February 16, 1904, 
Duncan B. Harrison, Esq., 

Washington, D. C. 

My Dear Mr. Harrison: Your favor bearing date of the 12th instant with inclos- 
ures was transmitted to me by Mr. Brand to-day. 

It is needless for me to reply in detail because I have given Mr. Brand such infor- 
mation as vou desire. 

Mr. Crafts is certainly misrepresenting the situation when he contends that these 
beer halls are able to exist because of their close proximity to the Soldiers' Home. 
You know that we have a few breweries in Milwaukee, but you probably don't know 
that we have two institutions, each of which employ more men than all the brew- 
eries of Milwaukee put together, and both of these incorporations have their place of 
business near the Soldiers' Home, and are in fact the factors that make it possible 
for many beer halls to exist on National avenue. For your guidance I have marked 
Doctor Crafts's leaflet. The street running from "A' Ho * * B " is National avenue, the 
main thoroughfare on the south side of the city of Milwaukee. *'C" is where the 
largest plant of the Allis-Chalmers Company is located. This is the largest engine 
factory m the world. They built all the engines for the Metropolitan Power Station 
in New York, and are building machinery for the new subway. They employ 3,800 
men, 90 per cent of whom walk from **B" to **A," National avenue, twice a day. 
They are hard-working people, and naturally drink their beer. Most of these men 
live within a radius of a mile from the point marked "B." There are very few 
houses at West AUis, marked **C," this being a new settlement. Besides the Allis- 
Chalmers works there are five or six other industrial plants, some of considerable 
magnitude. The men engaged in these plants have only one thoroughfare to town, 
and that is National avenue, running from "A" to "B." The street, of course, 
probably extends 2 miles to the east of * ' B. " That part of Doctor Crafts's map bear- 
ing this inscription, 

•* Part of Milwaukee. How the * canteen' does away with worse places," 
is not part of the Soldiers' Home at all, but the inscription is put in that place oppo- 
site the lar^e number of beer halls to mislead the members on the committee who 
are not familiar with local conditions and the topography of that part of Milwaukee. 
Some of the largest factories of the city are being erected directly across the street 



HEPBURN BILL. 143 

from the row of beer halls marked "G,** and streets lead directly from that part of 
National avenue, that is street marked "A**-"B," to the West Milwaukee shops, 
which are only about three blocks from Soldiers* Home. These shops belong to the 
Chicago, Milwaukee and St. Paul road, and are among the lan^est of tlieir kind in the 
Unitea States. The St/ Paul road has been building almost all of its passenger cars at 
this place, including such excellently equipped cars as the sleepers and diners on the 
famous Pioneer Limited. They are now also beginning to build their own engines. 
This institution employs from 5,000 to 5,500 men, and is the largest manufacturing 
establishment in Milwaukee. It is located at the point marked * * M. ' ' This plant lies 
in the Menomonee Valley, and I am safe in saying that not 5 per cent of the people 
working at these shops live north of the factory (the district three blocks north of 
section marked **M" is the best residence property in Milwaukee, and is owned 
a well-to-do class of people, not laborers or mechanics), but all must every by 
night on ceasing work, and every morning on returning to work, leave the Menomo- 
nee Valley workshops and take the road direct to and through National avenue, run- 
ning north and soutn to the point marked "G,** and their only route to and from 
their work is through National avenue. 

Point marked **G'* is where Mr. Crafts has noted that there are many beer halls. 
I have not counted the beer halls, but know that all of them are licensed. We 
haven't a " blind tiger" in the whole of Milwaukee. None of these are evil resorts. 
They are nothing but beer halls, where an honest man can get a pint of beer for five 
cents and eat a quantity of free lunch if he so desires. The district directly south of 
"C and "B'* is a workingman's locality, covering more than a square mile. It is 
needless for me to have any one else in Milwaukee corroborate what I have said in re 
these matters. It is a matter of common knowledge to every one engaged in busi- 
ness in this city, that the Allis-Chalmers works and the West Milwaukee shops are 
the largest institutions here. The cashier of the AUis works only advised me to-day 
that the number of people employed by their company is approximately 3,800 men, 
and the superintendent of tiie St. Paul road stated this afternoon that 5,000 to 5,500 
men are employed at their shops daily; I feel safe in saying that such an army of 
men would easily make it possible for a large number of beer halls to exist in any 
part of this country, or for that matter in any country of continental Europe. 

There are also other large works where the West Milwaukee shops are located, 
among them the Falk Manufaicturing Company. You, of course, understand that all 
these people employed in these plants must come to National avenue, either when 
they go to or come from work. The beer halls, inclosed in the circle marked **S," 
are ahnost entirely kept alive by the West Milwaukee shops and the men working 
in the stone quarries marked E. The stone quarries are among the largest in this 
part of the country and employ a large number of men, principally foreigners, who 
are known to consume considerable quantities of beer. The Home happens to be 
located in that part of the city, but I am advised by our south side manager, who 
has been with us over twenty-five years and who gets into this territory quite often, 
that very many of these beer halls are never frequented by a single soldier, but are 
simply frequented by the huge army of workmen who are engaged in that part of 
the city. If any of your friends desire further information as to the proximity of 
these plants to Soldiers' Home they can easily obtain it. 

Yours, very truly, " Jos. E. Uihlein. 

And this additional letter from J. E. Uihlein, president of the North- 
ern Refrigerator Transit Company: 

Milwaukee, Wis., February ^5, 1904. 
Duncan B. Harrison, Esq., 

Washingtoriy D. C. 

My Dear Mr. Harrison: I have inclosed herewith, as per your request, a map of 
the territory surrounding the Soldiers' Home at Milwaukee. The proximity to the 
Home of the various large factories has been noted on the map, and so that the com- 
mittee will be satisfied that the map is substantially correct, I have had the follow- 
ing aflix their signatures to a statement on the map: Cornelius Wheeler, governor of 
the National Home; Borchert Malting Company, by Ernest Borchert, president; The 
Falk Manufacturing Company, by C. Jones, assistant secretary; Chicago, Milwaukee 
and St. Paul Railwav, by W. R. Dodsworth, general agent; Pawling & Hamischfeger, 
by Henry Hamischfeger. Neither the general manager nor the general superintend- 
ent of the Allis-Chalmers Works was in his office this morning, and in that you gave 
us such short notice, I was obliged to send you the map without their signatures. 

I have also included herewith letters from Pawling & Hamischfeger, the Falk Man- 
ufacturing Company, and one from the assistant general superintendent of the St. Paul 



144 HEPBURN BILL. 

road showing that they alone employ approximately 5,000 men. You will observe 
that their plant is only 1,200 feet from the Home grounds. You will also observe 
that all men working at the shops must walk south to National avenue in order to 
get to their homes from the shops. The district north of the shops is a fine residence 
locality. The map serves to show you that the largest institutions of Milwaukee are 
located in close proximity to the Home, and shows conclusively that the majority of 
the saloons necessarily derive their existence from the patronage of these men going 
to and from their work. 

I donH remember what Mr. Crafts's map looked like as to exact location of saloons, 
but I will say to you now that there isn't a single saloon on National avenue directly 
across the street from the Home grounds. I believe Mr. Crafts's map shows some 
saloons about there. Whether his map indicates saloons at that place or not is imma- 
terial, but the fact is relevant that there isn't a single saloon on National avenue 
directly south of the Home. 

If I had a week's time I could get every manufacturer in that locality to testify to 
the close proximity of their plants to the Soldiers' Home, but in that you asked for 
the data by Monday, I was obliged to cut out many of the smaller manufacturers, 
some of wnom, however, employ hundreds of men. You will observe that I did 
not get signatures from the Milwaukee Electric Company, the stone quarries and other 
institutions of considerable magnitude about the Home. I have given you letters, 
however, from the principal plants, which should suflSce to entirely disapprove the 
statement of Mr. Crafts that these saloons derive their existence from the soldiers, 
which, of course, is a base misrepresentation and a downright lie, and which the 
testimony of the assistant general superintendent of the St. Paul road, and the other 
gentlemen who have appended their names to the maps, shows beyond a question of 
doubt. 

The map of Mr. Crafts is misleading in the extreme, and anyone who would dare 
to impose upon a Congressional conunittee, with what I term doctored evidence, is 
insulting the very body from whom he requests a hearing. If a person were guilty 
of perjury in a court at law he couldn't possibly misrepresent the facts of a case more 
grossly than the leaflet (map) you sent me does of the question before us. 

With kindest regards to you, I remain. 

Very truly, yours, J. E. Uihlein. 

This affidavit from Mr. W. B. Earling, assistant general superin- 
tendent of the Chicago, Milwaukee and St. Paul Railway Company, as 
to the number of men employed in their shops: 

Chicago, Milwaukee and St. Paul Railway Company, 

Milwaukee, February ^6j 1904. 
To whom it may concern: 

The Chicago, Milwaukee and St. Paul Railway Company's West Milwaukee shops 
are located in close proximity to the National Home for D. V. S., and the avenues 
of approach to National avenue are about as shown on sketch marked Exhibit "A." 
Approximately five thousand (5,000) men are employed at these shops. 
Yours, truly, 

W. B. Earling, 
Assistant General Superintendent. 
State of Wisconsin, 

Milwaukee County ^ ss: 
On this 26th day of February, A. D. 1904, personally appeared W. B. Earling, 
assistant general superintendent of the Chicago, Milwaukee and St. Paul Railway 
Company, to me personally known, who signed the above statement in my presence. 
[seal.] Edw. F. Byron, 

Notary Public, Milwaukee County, Wis. 
My notarial commission expires September 5, 1904. 

This succeeding affidavit from Mr. C. L. Jones, assistant secretary 
of the Falk company, as to the number of men employed in their 
shops: 

The Falk Company, 
Milwaukee, Wis., February 26, 1904- 
To whom it may concern: 

The Falk company, of which I am assistant secretary, employs approximately 
700 men. The shops are located near the National Soldiers' Home at Milwaukee, and 



HEPBURN BILL. 145 

at the proximity thereto as shown on accompanying map, marked ^'Exhibit A" is 
sabstantially correct. The means of egress and mgress to National avenue from our 
shops are also substantially correct as snown. 
This statement is made from my personal knowledge. 

Very truly, yours, C. L. Jones, 

Aasistant Secretary, 

State op Wisconsin, 

Milwaukee Covinty,^ ss: 
On this 26th day of February, A. D. 1904, personally appeared C. L. Jones, assistant 
secretary of the Falk company, of Milwaukee, Wis., to me personally known, who 
signed the foregoing statement in my presence. 

[seal.] Edw. F. Byron, 

Notary Public^ Milvxmkee County, Wis. 
My notarial commission expires September 5, 1904. 

This succeeding affidavit from Mr. H. Harniscbfeger, of Pawling & 
Harnischfeger, as to the number of men employed in their shops: 

Pawling & Harnischfeger, 
Milwaukee, Wis., February 26, 1904^ 
To whom it may concern: 

We hereby wish to state that our firm has purchased about 20 acres ot land 
adjoining the Soldiers' Home grounds, as shown on the map upon which we have 
placed our signature. It is our intention to put up new works and extend our pres- 
ent lines, and as we have within the last year employed already nearly 600 men, we 
exx)ect, when our new works are completed, under normal business conditions, to 
employ in the neighborhood of 1,000 men within the next few years. 
Itespectfully, 

Pawling & Harnischfeger, 
Per H. Harnishchfeger. 
State of Wisconsin, 

Milwaukee County, ss: 
On this 26th day of February, A. D. 1904, personally appeared H. Harnischfeger, 
one of the members of the firm of Pawling & Harnischfeger, of Milwaukee, Wis., to 
me personally known, and signed the foregoing statement in my presence. 
[seal.] Edw. W. Byron, 

Notary Public, Milwaukee County, Wis. 
My notarial commission expires September 5, 1904. 

So, therefore, you see, Mr. Chairman and gentlemen, that notwith- 
standing the misrepresentations of the skeletonized maps shown in 
Exhibits D and E, and their accompanying fabrications, I now prove 
to you that there are the following residents and workmen in and 
around the Soldiers' Home in Milwaukee, Wis., and all within a half 
mile of said Home: 

Allis & Chalmers shops 3,800 

C, M. &St. Paul Railway shops 5,000 

Residents northern section, about 1, 900 

Residents southern section, about 4,700 

Falk Company 700 

Harnischfeger Company .^ 600 

Allow for other residents 2,500 

We have a total of 19,200 

As against this total of 19,200, the total menibership of the North- 
western Home for Disabled Volunteer Soldiers in the city of Mil- 
waukee, Wis., at the end of fiscal year June 30, 1903, was, '•'present" 
2,071, per Inspector-General's report, War Department, U. S. Army. 

Less than one-ninth the number of residents and workmen around 
and about said Home. 
H B— 04 10 



146 HEPBURN BILL. 

• 

It is also demonstrated that the only channel of ingress and egress 
to the workshops and residences of this district is through National 
avenue, where nearly all the saloons are supposed to be located, as 
shown in exhibits of maps in Exhibits D and E. 

In this correct map which you have before you, you have the sworn 
testimony of Col. Cornelius Wheeler, Erest Borchert, C. L. Jones, 
W. H. Dodsworth, and H. Harnischfeger, whose statements prove 
that the Rev. Wilbur F. Crafts's map and accompanying testimony in 
Exhibits D and E are absolutely intentionally misleading, and, to put 
it mildly, incorrect. 

You have the further testimony of the Hon. Rudolf Brand, corrobo- 
rating the statements of the other witnesses whose testimony you have 
heara. 

You have Governor Wheeler's letter proving the statement of the 
number of saloons to be a falsehood to the extent of 20 and 24 per cent^ 
as shown in the maps in Exhibits D and E. 

You have the sworn testimony of Messrs. Harnischfeger, Jones, and 
Early as to the number of men they employ. 

You have the statement of Mr. Joseph E. Uihlein as to the exact 
conditions surrounding the Soldiers' Home. 

You have the further testimony of Mr. Joseph E. Uihlein that the 
saloons represented to exist on National avenue, south of the Soldiers' 
Home, per the maps in Exhibits D and E, as stated by the superintendent 
of the International Reform Bureau, do not exist at all, except in the 
phantomized imagination of this extremely imaginative individual. 

Mr. Chairman and gentlemen, you noted unquestionably with satis- 
faction the manner in which all of the officers of these associations 
gave credit to the National Home at Marion, Ind., for its being what 
they termed a "canteenless " Home, and the fulsome tribute paid to 
the Marion Home and its management by the Rev. Dr. W^ilbur F. 
Crafts, as contained on page 25, last paragraph, and page 26, first 
paragraph, of Exhibit D, and in the sixth paragraph, second page of 
Exhibit E, and the further tribute paid to this Home by Mrs. Ella M. 
Thacher, as contained in the fifth paragraph, eighth page. Exhibit D, 
and the first paragraph of her statement on the secona page of Exhibit 
E, and the further praise of this Home by the other witnesses, as shown 
in the testimony oi Exhibit E. 

Let me present in evidence this letter from John Q. Adams, treasurer 
and acting governor of the Marion Home: 

Headquarters, Governor's Office, 
Marion Branch, National Home for D. V. S., 

February 17 j 1904. 
Respectfully returned to Maj. Duncan B. Harrison, Washington, D. C, with the 
information that there are no saloons in the immediate vicinity of the Marion Branch, 
National Home for Disabled Volunteer Soldiers. One year ago the Indiana Legisla- 
ture passed a law prohibiting the sale of intoxicating liquors within 1 mile of the 
Soldiers' Home. Prior to that time there were some 12 or 15 saloons just outside of 
the Home grounds. 

Jno. Q. Adams, 
Treasurer and Acting Governor. 

You will also note the unanimity of opinion on the part of the oflS- 
cers and witnesses of these associations in their tribute to the splendid 
management of Col. George A. Steele, and Justin H. Chapman, the 
manager and governor of this Home, who are concededly splendid 
disciplinarians. 



HEPBURN BILL. 147 

Yet, notwithstanding the advantage derived by this Home through 
the State law prohibiting the sale of liquors within a mile of its limits, 
the fact of its excellent discipline maintained by its managers, the fur- 
ther fact of its having no canteen, and notwithstanding the fact that 
it has the smallest number of inmates of any of the National Homes, 
it ranks fourth, fifth, and fourth, in the status of the eight National 
Homes in percentage of drunkenness, offenses committed through 
drunkenness, and punishments inflicted for said offenses, per Inspector- 
General's report to the War Department for the year ending June 30, 
. 1903. 

You will therefore see, Mr. Chairman and gentlemen, that the oflS- 
cers and witnesses of these associations have again been somewhat 
remiss in their statements. 

Exhibit F. 

I respectfully ask your consideration of Exhibit F, entitled ' ' Scientific 
testimony on beer." 

This is one of their favorite, I might say most favorite, campaign 
documents, or as they are pleased to call their propaganda, "moral 
reform arguments." 

This Exhibit F used to be profusely distributed by the hundreds 
of thousands in the form of FF, which you will see was dignified as 
as a Senatorial document. 

But from extravagant use of its original form these associations 
exhausted every source from which they secured their supply of this 
Exhibit FF, and were forced to abandon the Public Printing Office 
from which they secured them at Government rates, and have them . 
printed elsewhere under the form of Exhibit F. 

The sources from which the contents of this extraordinary document 
were obtained are questionable, and are now being fully investigated. 

For the present I ask your consideration of the fourth paragraph of 
first page, which reads: 

Everyone bears testimony that no man can drink beer safely; that it is an injury 
to anyone who uses it in any quantity, and that its effect on the general health of 
the country has been even worse than that of whisky. The indictment they, with 
one accord, present against beer drinking is simply terrible. 

Mr. Chairman and gentlemen, I respectfully be^ your anatysis of 
this intemperate, vicious, and untruthful statement m denunciation of 
beer. 

Everjrone bears testimony that no man can drink beer safely. 
The indictment they, with one accord, present against beer drinking is simply 
terrible. 

Who is the "everyone" who bears testimony that no man can drink 
beer safely ? 

Who are "they" who, with one accord, present such a terrible 
indictment against beer drinking. 

There is but one answer — the self -constituted leaders of these reform 
associations. 

Mr. Chairman and gentlemen: Prof. Louis Pasteur, one of the great- 
est, if not the greatest, benefactor of mankind that ever existed in this 
world, certainly that our generation has ever known, celebrated as a 
savant, philosopher, chemist, analyst, and discoverer, in the year 1870, 
on the conclusion of the sanguinary Franco-Prussian war devoted four 



148 HEPBURN BILL. 

years of his remarkable life to the investigations, experiments and 
analyses, and fermentations of beers. 

The results of his researches and investigations he expressed in three 
famous volumes, known under the titles of " Studies on Beer," '' Exper- 
iments with Beer," and "Beers and Fermentations." 

In his volume '' fitudes sur la Bi^re" ('' Studies on Beer,") this famous 
man states that the reason for his researches and investigations of beer, 
fermentation, and experiments, was for the sole purpose of demonstrat- 
ing to his countrymen (the French) that the cause of their defeat in 
the Franco-Prussian war was directly attributable to their overindul- 
gences in vinous and spirituous liquors, particularly, as he termed it, 
the curse of absinthe, and that the main cause of the phj^sical superi- 
ority of the Prussian army and of the entire German nation was 
directly attributable to their liberal indulgences in malt liquors. 

Professor Pasteur devoted a period of four years, as I bef ore.stated, 
in his researches and analyzations of malt liquors, and in the prefaces 
of his two succeeding works, ''Experiments with Beer" and ''Beers 
and Fermentations," ne again voices the reasons specified above for 
his researches in beers for the benefit of his countrymen and mankind 
generally. 

The results of his researches have been generally adopted by the 
brewers of the world, and universally adopted by the brewers of 
America. Hence our perfect beers, ales, and porters. 

Hence the method of preservation of beers, and the elimination of 
impurities, known as Pasteurization of beer, whereby according to the 
opinions and indorsements of such eminent savants as Prof. Jno. Tyn- 
dall, Professor Graham, Lord Lister, Lord Bass, Professors Appert, 
Bellamy, Brefeld, Carl Oppenheimer, Emil Chr. Hansen, Eugene 
BouUanger, and the additional opinion of Prof. Alfred Jorgenson, 
director of the Royal Laboratory at Copenhagen, Herr LemhoTm, and 
the eminent French savants Gay-Lussac, Cagniard, Latour, Jules 
Duval, are united in the opinion, expressed in their reviews of Pro- 
fessor Pasteur's methods and under their signatures, that through 
Professor Pasteur's eminent researches — 

" Brewing has thus become a series of precise and definite operations, 
capable of control at every point." 

"Through pasteurization the brewers have been enabled to emanci- 
pate their industry from empiricism and quackery and make their 
product the most wholesome healthful of drinks and helpful of foods." 

I again refer to the testimonies of the American professors and 
chemists, given before the pure food investigations of the United 
States Senate, contained in Report 616, Fifty-sixth Congress, first 
session, and the analytical researches of the Department of Agricul- 
ture contained in that same volume, and add them to the illustrious 
name of Pasteur and his brilliant associates. 

I ask you, Mr. Chairman and gentlemen, to contrast them with their 
expert knowledge and researches with the manufactured slanders 
printed by these associations and their officers, as shown in Exhibits 
^'F" and "FF". 

Further comment is unnecessary. 

Let me, please, digress for a moment, and quote the translation of 
Professor Pasteur, taken from the preface of one of his volumes: 

The idea of these researches was inspired by our misfortune. I undertook them 
immediately after the war of 1870 and have continued them without intermission 



HEPBUBN BILL. 149 

up to the present time, with the determination to carry them far enough to mark 
with a permanent advance an industry in which Germany is markedly superior to us. 

What will come to pass in this great industry through putting into practice the 
process of manufactured beer that I have deduced from my observations, and through 
the usefulness of the new facts upon which it is founded, I shall not have the temerity 
to predict the future on these questions. Time is the best appraiser of scientific 
work, and I do not ignore the fact that an industrial discovery rarely bears all its 
fruit under the hands of the first inventor. 

I began my investigations at Clermont-Ferrand on the laboratory of and with the 
aid of Monsieur M. Duolaux, professor of chemistry at the Faculte des Sciences, of 
this city. I continued them at Paris, and finally in tne great brewery of the Brothers 
Tourtel at Tantonville, beyond dispute the first in France. 

It is my duty to thank publicly these intelligent manufacturers for their extreme 
courtesy. I owe equally a public acknowledgment to M. Kuhn, a skillful brewer of 
Chaalieres, near Clermont-Ferrand, as well as to M. Velten, of Marseille, and to 
MM. de Tassigny, of Rheims, who have put their factories and their products at my 
disposal with most laudable eagerness. 

L. Pasteur. 

Paris, le ler Juin, 1876, 

And yet, Mr. Chairman and gentlemen, these wild manufactured 
denunciations of the great brewing industry have been distributed by 
the millions "in every city, village, and borough of the United States 
and ever^^ foreign land" to influence legislation and "crowd" the 
Hepburn bill through by these wonderful analytical reform associations. 

Just for one moment, Mr. Chairman and gentlemen, compare the 
methods of the treatment accorded the brewers of America with the 
manner in which they are treated in Europe. 

In England their industry is represented by over 30 members in 
Parliament and 5 members in the House of Lords. 

In Germanv the brewers virtually hold the balance of i)ower in the 
German Reichstag. 

In Austria the same conditions prevail in the Bundesrath. 

In the Chamber of Deputies of France they are strongly represented. 

In every European country the brewers are accorded the respectful 
recognition to which their great industry, progressiveness, and emi- 
nence justly entitles them. 

While in our country, where they contribute over 100 per cent 
great amounts to the support of the Government in ratio of taxa- 
tion, and several hilndred per cent great amounts to the industrial 
producers of the soil, and employ more people than England, Ger- 
many, Austria, and France combined, and where their invested capi- 
tal excels all of these countries, they are held up to scorn and slander, 
to abuse, to vituperation, to misrepresentation, and their every effort 
impeded by vicious extremists, who openly state and advertise that 
their one aesire is to ruin, to destroy, to obliterate the brewers and 
their enormous industry. 

And for what reason and for what motive? 

To secure sincere reform? To stamp out evil resorts, red lights, 
and slums? Oh, no, Mr. Chairman and gentlemen, as I have proven 
to you, the brewers are doing all the good work, while these so-termed 
reformers are only retarding. 

If the correct solution of the methods of the reformers is desired, it 
is only necessary to examine their business methods, their luxurious 
headquarters, their salaries, and contributions. These, perhaps, will 
tell the story. 

Mr. Chairman and gentlemen, do not think for one moment that I 
am seeking to put wings on the brewers or surround their brows with 



150 HEPBURN BILL. 

crowns or surround them with halos. On the contrary I am only rep- 
resenting them as they are, a sterling lot of respectable and law- 
abiding citizens, proud of their country, of their achievements, and 
of their citizenship, and jealous of their honor and the integrity of 
their industry. 

Exhibit G. 

I next respectfully call your attention to Exhibit G, entitled " High 
license in Massachusetts, New York, and Alaska." This* " reform " 
document, Mr. Chairman and gentlemen, is one of the favorites for 
distribution by these associations, and has been used very largely in 
influencing legislation to ''crowd" the Hepburn bill through. 

Its citations are remarkable in the extreme, And yet not without 
ludicrous features. Kindly listen to this marvelous citation: 

Last year at Holyoke, Mass., I had some of my friends stationed in offices oppo- 
site six of the worst '* hotels," to count the number who went there on several Sun- 
days and some holidays, on which the sale of liquor is prohibited. The law allows 
these so-called hotels, which do very little legitimate business, to sell on Sundays 
and holidays to guests only — those who resort to their place for food or lodging — but 
the supreme court of Massachusetts has declared that on such days, under the law, 
they can only sell to guests at their meals or in their rooms. They can not sell over 
the bar on such days to anyone, but here are the results 6f counting those who went 
in on some of the Sundays and holidays. In not a single case is the record complete 
for the day, as some of my customers could not stay all evening, and others went 
home for dinner and supper. But here is the number counted, as they are ready to 
go into court and testify: 

Sunday^ 8 record^ March^ 1901. 

Hotel No. 1 143 

Hotel No. 2 529 

Hotel No. 3 547 

Hotel No. 4 740 

Hotel No. 5 924 

Hotel No. 6 1,078 

Total 3,961 

Easter Sundcfy, 1901. 

Hotel No. 1 434 

Hotel No. 2 450 

Hotel No. 3 924 

Hotel No. 4 1,161 

Hotel No. 5 1,308 

Hotel No. 6 1,673 

Total 5,950 

And yet, Mr. Chairman and gentlemen, the Twelfth Census of the 
United States of America, in the year 1900, gives the following statis- 
tics in volume 1, page 161: 

Total population of Holyoke, Mass 45, 712 

Females 23,968 

Males 21,744 

Total 45,712 

Volume 2, page 131, of the Twelfth Census of the United States of 
America, year 1900, states: 

Total number of males of all ages, including infants, in Holyoke, Mass. 21, 744 
Total number of males over 20 years of age 12, 201 



HEPBURN BILL. 151 

Divided as follows: 

20 to 24 years 2,075 

25 to 29 years 2,077 

30 to 34 years l,804i 

36 to 44 years 3,006 

45 to 54 years 1,818 

55 to 64 years 985 

65 vearsandover 381 

Unknown ages 55 

Total 12,201 

In the census report in a volume entitled ''Churches," on page 263, 
the following statistics are given: 

Church edifices and organizations in Holyoke, Mass 17 

Divided as follows: 
Denominations — 

Regular Baptist 4 

Catholic 4 

Congregationalists 2 

Lutherans 1 

Methodists 3 

Presbyterians 1 

Episcopalians ^ 1 

Unitarians 1 

Total 17 

Value of church property $546,976 

Number of communicants 22, 876 

Females , 15,252 

Males 7,624 

Total 22,876 

Total number of male non church communicants 4, 577 

So you will see, Mr. Chairman and gentlemen that, according to 
the above tables, on Easter Sunday, 1901, 5,950 of the male popula- 
tion of Holyoke were seen to enter hotels Nos. 1, 2, 3, 4, 5, and 6 for 
the purpose of drinking. 

And yet, according to the Weather Bureau of the U. S. Dejjartment 
of Agriculture, whose map and statement I herewith submit in evi- 
dence, attested by the Chief, Willis Moore, this particular Easter 
Sunday, 1901, was a bright pleasant day in Holyoke and its vicinity, 
with plenty of sunshine, naturally throngs of people in the street, and 
a day in which crowds could be easily detected. 

The difference between 4,677 nonchurch communicants and the 
5,950 who entered said hotels to drink is precisely 1,373, leaving a 
surplus drinking population in Holyoke, Mass., on Easter Sunday, 
1901 (unaccounted for), who participated in that particular orgy on 
Easter Sunday, 1901, of 1,373. 

Is it possible? But, no, no; I can not for a moment even suspect 
that any sermon would be as dry as all that. 

Another glaring improbability is the statement of the number of 
people who pushed their way into " Hotel No. 6" — 1,673. Just think 
of it, gentlemen, 1,673 struggling men with a "thirst" — two regiments 
of men — pushing into one hotel between the hours of 6 a. m. and 7 
p. m. to buy drinks. For those must be the hours between which the 
''friends" stationed in offices opposite six of the worst ''hotels" could 
see this crowd. 



152 HEPBURN BILL. 

Thirteen hours, seven hundred and eighty minutes, two and one- 
half men to the minute, to get a drink or drinks, is what this number 
^would equal. 

Or even take a full day of twenty-four hours, beginning at mid- 
night Saturday night, ending at midnight Sunday night, twenty-four 
hours, one thousand four hundred and forty minutes. Why, Mr. 
Chairman and gentlemen, 1,673 men standing in line from midnight 
Saturday to midnight Sunday night would have just about six- 
sevenths of a minute each to enter said hotel, proceed to the bar, 
call for his drink or drinks, have it concocted for him, or drawn 
for him, or poured for him, or opened for him (you see I am familiar 
with drinking terms) and drink it, receive his check, pay for his drink, 
receive his change, leave the barroom, and make his exit from the 
hotel — all in six-sevenths of a minute. 

One continuous stream of men, a struggling mass of men, a ver- 
itable mob of men, in and out of this one hotel, and all on Easter Sun- 
day; or, as these associations would call the hotel, a "speak-easy 
place," a "blind-tiger place," in which men would strive to evade 
attracting attention of the officers of the law, and as it states in this 
pamphlet. Exhibit G. 

Under the laws of the supreme court of Massachusetts they can not sell over the 
bar on Sunday to anyone. 

One thousand six hundred and seventy-three men, gentlemen, in this one hotel. 
What a blessing it was that the friends who counted for these associations ** could 
not remain all evening and others of the counters went home for dinner and supper.*^ 

If they could have remained the entire day they would have prob- 
ably counted the entirety of the population of Holyoke, Mass., as 
drunkards and lawbrealiers, irrespective of church affiliations and 
regardless of age, sex, color, and condition. 

lou will note, however, Mr. Chairman and gentlemen, how care- 
fully these associations refrain from mention in their document, 
Exhibit G, the disposition of the case against this particular hotel. 
Also, how carefully they refrain from mentioning the name of the 
hotel, in order to cover up, to conceal, a tracing the facts concerning 
this alleged case. 

They also refrain from stating the names of the other hotels against 
which they brought charges of lawbreaking. 

The jury, however, acquitted this hotel, the Marble Hall. The case 
was laughed out of court as ridiculous, preposterous, and the charges 
against the other five hotels were dismissed for lack of evidence. 

I offer this letter from his honor the mayor of Holyoke, Mr. Chapin, 
in corroboration of nay statement. 

Seriously, Mr. Chairman and gentlemen, and very seriously, I call 
your attention to the fact that this is one of the many documents, this 
Exhibit G, which these reform associations are spreading broadcast, as 
they state, "in every city, village, and borough of the United States 
and every foreign land," for the purpose of inflaming the minds of the 
people and influencing legislation, securing petitions and petitioners, 
and, as they further state, to use such methods to ''crowd" the 
Hepburn bill through. 

Mr. Chairman and gentlemen, this Exhibit G and the other pam- 
phlets which I have presented in evidence for your consideration 
are so pitiful, yet so monstrous in their distortions of facts and truths, 
and so vicious in their design and deception, and yet withal to the 



HEPBURN BILL. 153 

thinking man so transparent, that it is a sad commentary that they 
should receive any consideration from anybody; and yet the millions 
of petitioners and petitions which you gentlemen receive to influence 
you in your attitude toward public measures are secured through these 
pitifully libelous exhibits which I have presented before you to-day. 
Oh, the pity of it all! To think that they emanate from people whose 
calling is supposed and believed to deprecate untruths and misstate- 
ments, and whose garb, as followers in the service of Him who 
preached the Sermon on the Mount, secures for them, as it naturally 
should and ought to, special consideration and courtesy; and yet I 
am compelled regretfully to state that every special courtesy and 
consideration has been abused. Every charity that you gentlemen of 
the House of Congress and of the Senate of the United States have 
tendered to these associations and to their oflicers have been taken 
advantage of. Their warmest advocate can not asperse the proofs 
which 1 have presented for your consideration. Tneir most lenient 
critic can not but concede that they are condemned, and mainly out of 
their own mouths. 

The old proverb, to give the inch and to take the ell, has in their 
actions been most amply exemplified. 

The industry which I represent and I, myself, would ordinarily con- 
cede that the motives of people of their cloth were not to be impugned. 

I can readily understand, therefore, that when one of the officers of 
these associations would approach you gentlemen and make a state- 
ment that you would naturally credit them with telling the full truth, 
and hence the glaring impositions which have been practiced on you 
are demonstrated by the fact that the majority of these exhibits have 
been dignified by being presented to the Houses of Congress and 
thereby receiving the titles of Government documents. 

Therefore, you can appreciate most readily how these associations 
and their officers have made their misstatements a two-edged blade 
cutting both ways, and with their badge of office as a sheath imposing 
upon Congress by misrepresentations and deliberate falsehoods, and 
deceiving their sincere followers by making them believe that they 
have the indorsement of Congress, and are in vogue and en rapport 
with Representatives and Senators, by forwarding to their followers 
the governmental documents whose introduction they have secured by 
methods that will not bear investigation, delivered in franked envel- 
opes secured from Representatives and Senators who believe in their 
sincerity and integrity, and who are themselves devout followers in 
the cause which these associations and their officers blaspheme. 

Mr. Chairman and gentlemen, it is but natural to suppose that, after 

all the consideration, courtesies, and generosities that these associations 

and their officers have received at the hands of the Congress of the 

. United States of America, gratitude would be the very keynote of 

their attitude in reciprocation for the favors received. 

But such is not the case. Gratitude does not form one infinitesimal 
atom in their grasping efforts to attain their desires. Their founda- 
tion stone is self-glorification; the capstone, self -emolument. And the 
same voices that will be raised to-day in supplication, in argument, and 
in pleading, will be used to-morrow to flay and lash with scorn and 
vituperation. 

In proof of which, I present for your consideration — 



154 c HEPBURN BILL. 



Exhibit H. 



Entitled: ''Moral Victories Won and Waiting," and under the cap- 
tion of this exhibit, first page, "Moral Reform Only a Side Dish m 
Congress," occurs this statement: 

"Our victories are mostly in amendments, the former stratejric use of the side 
door." *' Congress will generally vote right when it has to vote — let us be thankful 
for that — and so when a germane amendment in the interest of morals can be attached 
to some political or financial or military measure it usuallv passes/' It was by such 
a flank movement we carried the divorce law, the Sabbath closing, the first and sec- 
ond anticanteen laws. 

The percentage of time given by Congress to morals is infinitesimal. 
It is not the turkey in the legislative feast, as it should be, but only a 
side dish. The Senate has no committee on morals. The House only 
one, the last and least of all, the Committee on the Alcoholic Liquor 
Traffic, made up mostly of new men who could not get on any other 
committee. A former chairman of the committee said he would 
"rather be the tail end of , the Appropriations Committee," he "would 
walk to New York to get that promotion." Moral reform is treated 
about Congress as a distant poor relation of politics that can not be 
wholly ignored — must have a crumb and a word now and then. 

And this is the Moral Reform Association's estimate of this commit- 
tee, and the House of Representatives, and the Senate of the United 
States of America, at whose hands they have received so many, so very 
many considerations. 

And this is their slur at the Congress of whom that splendid type of 
American gentleman, Representative Shafroth, only a few days ago 
declared to be "the greatest legislative body in the world." 

Mr. Chairman and gentlemen, I marvel, I wonder how these asso- 
ciations and their officers dare persist in seeking the Congress of this 
great country, which they publicly deprecate, to solicit their assistance. 

Mr. Chairman and gentlemen, it is time to call a halt. It is time 
the "reformers" were reformed. There are no virtues in their 
methods, only methods in their madness, for on the subject of drink 
they are mad, and use no reason, no judgment. They are not big 
enough or broad enough to analyze and reason. They move in one 
narrow rut, but seek an outlet through one narrow channel. Their 
minds have dwelt so persistently, so constantly on the one subject 
that they can not see beyond it. Their grasping desires to secure a 
point, to attain an object has narrowed their minds into almost noth- 
ingness, and to attain their end, as it has been demonstrated to you by 
these exhibits and by the testimon}'^ which I have presented, they 
will connive, manufacture, slander, and descend to almost any depth 
in order to destroy. They appear to be, and I liken them unto the pro- 
fessional hunter, who stealtnily advances, dodges in and out, hides, 
and snares, and lures, and then destroys. They do not reason that it 
is not the drink that is to blame, but the weakness of the individual 
who carries it to excess. Based on their principles they should advo- 
cate the banishment of cutlery because some poor, maddened people 
use knives with murderous intent. 

Again, on the same principles that they advocate, they should pre- 
cipiSite a crusade against firearms, because other unfortunates are 
invested with homicidal tendencies. 



HEPBURN BILL. 155 

But they do not do this; they use no reason, but concentrate their 
attention, their antagonism, and condemnation on the material, when 
you and I, and all who think, know that it is the man who is to blame 
and not the object. 

But it suits their purpose to decry beer, for by their machinations 
and adroitness and fabrications and abuse of confidence, they have 
made it a popular subject of denunciation with a certain cabal with 
whom they have surrounded themselves. 

Besides, they have made it profitable. It is their means of liveli- 
hood and sustenance, and a very good vehicle it has proven to be, as 
their luxurious homes, well-equipped headquarters, and fat contribu- 
tions testify. Hence, the method in their madness. 

I now present for your consideration Exhibits A and AA — two 
petitions — signed. 

I first call your attention to the fact that both of these petitions 
emanate from the Women's Christian Temperance Union Association, 
and are both signed by Mrs. Margaret Dye Ellis, who, I believe, is 
the legislative superintendent of said association. 

I also respectfully request your notation of the fact that, while 
Exhibit A is captioned "Petition to United States Senate," and peti- 
tion A A is caj)tioned "Petition to the United States House of Repre- 
sentatives," still they both specifically state that they are petitions 
" For the passage of the Hepburn-DoUiver bill, H. R. 4072, S. 1390, 
at the earliest possible date." 

Probably every one of you gentlemen have received hundreds of 
these petitions from your various constituents and from all sections 
of the country, but you probably have none of you received any of 
these petitions with the footnote attached thereto. 

I would ask yon to note the language of this footnote. For instance, 
the title of the footnote in glaring capitals: "Read carefully and tear 
oflF before returning." 

Why should they want this footnote torn off*, gentlemen, if they are 
honest? Why should they want it destroyed if they are sincere? Why 
should they want to hide from you, gentlemen of this Congress, the 
methods through which they secure their petitioners to sign these peti- 
tions with which they flood the two Houses of Congress of the United 
States, if those methods which they pursue were honorable? There- 
fore, why should they want this footnote "torn off before returning 
petition?" 

For several reasons: First. They do not want disclosed to you gen- 
tlemen the source through which Congress invariably receives a flood 
of petitions on all bills pertaining to legislation antagonistic to beer. 

Second. If their modus operandi were made patent to you gentle- 
men, it would nullify their claims of personal importance, " enorpous 
following," "tremendous interests," " millions waiting in anticipation," 
"representatives of 20,000,000 church members," etc. 

Third. If their methods were known, then Othello's occupation cer- 
tainly would be gone! Also note these words of their petition. 

"The liquor party has been flooding Congress with petitions from German 
societies." 

Mr. Chairman and gentlemen, right here and from the very house- 
tops, I want to nail this outrageous slander — this manufactured libel — 
and in conjunction with this statement I desire to call your attention 



156 HEPBURN BILL. 

to page 8, last paragraph of Exhibit B, under the caption "Ger- 
man-Americans and the Hepburn bill." This statement " at the first 
hearing on this bill on January 20, 1904, all the opposition was made 
in the name of German-Americans, of whom thousands had been 
deceptively marshaled by the brewers to defend their 'speakeasy' 
trade. Many of these opposers are law-abiding men, wno do not 
know that it is anarchy, and not liberty, which they have been called 
to defend." 

This statement in Exhibit B, and the statement in the footnote of 
this petition, Exhibit A, I combine together in denunciation. I main- 
tain, Mr. Chairman and gentlemen, and you will bear me out, that 
never in your experience in this or any other Congress has such a vicious 
and unwarranted libel been asserted. Never has such a monstrous 
statement before been printed in a Senate document. 

You were all present when Doctor Hexamer and the other representa- 
tive German-Americans made their statements. 1 do not even know 
their names or who they are. I do not even, on my honor, know Doctor 
Hexamer, except b}^ reputation as the accepted and acknowledged 
leader of several of the most influential German-American associations 
in the United States. I never saw him before that hearing on Janu- 
ary 20, 1904, in this committee room. I have not seen him since. 

But this I do know, that the brewers of America absolutely did not 
influence Doctor Hexamer or his associates' actions and appearance 
before you. 

You all witnessed, as did I, the presentation of these representative 
German- Americans by the honorable gentleman from Missouri, Mr. 
Bartholdt, and you heard the learned, firm, and pungent arguments 
against the Hepburn bill by Doctor Hexamer on the nigh ground of 
personal liberty and right, the keynote, the clarion call of the millions 
of our German- American citizens, as it was the keynote of their fore- 
fathers, which resulted in the unification of the great German federa- 
tion. 

And for appearing before you, gentlemen, by the divine right of 
the citizenship which they have adopted, and voicing their sentiments, 
which is the great privilege accorded every American citizen, these 
associations and their oflScers, who would fain usurp all, all the rights 
of citizenship, and everything else to themselves, dare arrogate to 
themselves the power to denounce these representative gentlemen as 
"defenders of anarchy," but add the additional ofl'ense and outrage of 
circulating these statements under the title of a Senate document and 
as a footnote to the petition through which they falsely secure signa- 
tures by these slanders and misrepresentations. 

The next line to read: 

To offset this we want the names of churches and organizations. 

There j^ou are, Mr. Chairman and gentlemen; this is an expos^ of 
one of their favorite methods. They lay the foundation to secure the 
signatures of churches and organizations by uttering a falsehood and 
a slander, and then, through their innocent, sincere followers in the 
rural district, who believe m their honestv and integrity, seek the sig- 
natures of churches and organizations and then approach you gentle- 
men and strive to impress you with what they are pleased to term 
''their moral support.'' It is one of their most approved with which 
to approach Congress. 



HEPBURN BILL. 157 

Again they resort to femininity: 

Several women from every union should be appointed to look after this work. 

It is a noticeable feature, Mr. Chairman and gentlemen, that the 
professional reformer always turns to women as their best and most 
potent and effective weapon. They fully realize and appreciate the fact 
that woman's influence is always dominant, and in the matter of obtain- 
ing signatures to a petition a woman's solicitation is a difficult thing to 
resist, as we have all experienced and know. 

And I feel justified in indorsing at least one of their statements as 
being true, to wit, that " millions of signatures have been forwarded 
to this Capitol on petitions." 

But, on petitions which had absolutely no interest to the signer, 
and whose signature would never have been obtained had not a 
woman's plea, "Oh, please do sign for me," been the potent power to 
obtain the signature. 

These words convey much: 

It will not be necessary to get all the signatures before sending, but keep petitions 
ooming. 

There you are, Mr. Chairman and gentlemen. This tells the story 
to you of the whys and wherefores of the floods of petitions that are 
showered upon you. It also explains the method in the madness of 
the institution of headquarters here in the capital city of these 
various associations by the professional reformers who are at their 
heads. 

It is not the individual who signs, nor the sincere reformer who 
receives the petition from the association and secures the signature of 
the petitioner, and who, nine times out of ten scarcely knows what it 
is all about, but it is the head and front of the offending, right here 
in the capital city, who incepts, precipitates, superintends, legislates, 
and lobbies, and who backs up his importunities by having the little 
sincere reformer at home hustling about with blank petitions, securing 
signatures, and deluging Congress with said petitions, and working 
and striving sincerely in the vineyards of the Lord, to ''keep peti- 
tions coming." Which of course is the oil upon the professional 
reformer's wheel, and supplies him with the necessary munitions of 
war, and incidentally the necessary funds with which to conduct the 
warfare. 

The last paragraph: "It is the King's business and requires haste." 

I will not comment upon this, gentlemen, except to say if by the 
"King" they mean the "King of Kings," as a Christian I have no 
hesitation in expressing my opmion that He does not approve of the 
methods they employ. 

Exhibit I. 

I respectfully call your attention to Exhibit I, a book entitled 
"History of the International Reform Bureau," edited and printed 
by the Kev. Dr. Wilbur F. Crafts, Ph. D. ; and in this book he is 
pleased to term himself in various places the "founder," "inceptor," 
"superintendent of legislation," "Christian lobbyist," and the "Third 
House of Congress;" also " Speaker of the Third House of Congress," 
and treasurer — always treasurer. 

For subtitle to this "history" we have the quotation edited by the 



158 HEPBURN BILL. 

Rev. Dr. Wilbur F. Crafts, "Render to Csesar the things that are 
Caesar's." Well, I am trying to! 

I ask you to turn to page 41 and read his statement: 

I can reach a thousand persona for a dollar, with a letter having the autograph in 
facsimile of a Senator or Representative in the upper left-hand corner, and so, likely, 
to attract your attention. 

Said Doctor Crafts to your correspondent one day, in explaining 
his methods: 

Envelopf^s of the ordinary letter size are selected, and of white paper, whenever 
possible. These Doctor Crafts gets by the thousands, free of charge, from the various 
Congressmen whose names they bear. They go through the mails under the frank- 
ing privilege, the only requisite is that their contents shall be ** Government matter," 
but that is easily enough secured, either by having whatever the bureau desires to 
circulate made a part of somebody's speech or otherwise brought into the official 
record. Reports of hearings may be franked. So many special articles are prepared 
for the instruction of a committee on any topic, whenever the committee votes to 

Erint them. The reform bureau then seta not only its envelopes and postage free, 
ut a certain large number of copies of the reprint which it is desired to convey. 

Mr. Chairman and gentlemen, words fail me to properly express and 
convey the monstrousness of this declaration in cold print, in which 
this association, through its superintendent, declares that it can secure 
''special privileges" at the expense of all the other taxpayers of the 
United States of America. 

Here, for once, is the whole showing of one, of the methods of opera- 
tion by which this International Reform Association, the Anti-Saloon 
League, and the Women's Christian Temperance Union, distribute 
slanders and villifications and misrepresentations at the expense of 
those whom they slander, villify, and misrepresent. 

They are all combined in this method, for as you can and have read 
in the Exhibit B, 9th page, 2d paragraph, these words: 

The Reform Bureau is cooperating with the Anti-Saloon League, W. C. T. U., and 
the National Temperance Society in pressing this important measure (Hepburn bill, 
H. R. 4072; DoUiver bill, S. 1390) to enactment. Besides numerous syndicate arti- 
cles in the press and platform appeals, the bureau has sent out more than fifty thou- 
sand documents and petition blanks in promotion of this bill. 

And on page 17, same exhibit, under the caption "Local reform work 
of the bureau," 3d paragraph, this statement: 

Millions of petitions and practical reform documents have been sent to reforna 
leaders and workers, everywhere, reaching eviery city, village, and borough of the 
United States, and every foreign land. 

And their further audacious statements on page 15, under the caption 
"The sacred right of petition," and the form of the petitions encom- 
passing the entirety of page 16, Exhibit B, and the first paragraph on 
paffe 17, Exhibit B, with the instruction of the methods to pursue in 
oraer to petition, all of which, Mr. Chairman and gentlemen, is con- 
centrated upon the passage of this Hepburn bill. H. R. 4072, and the 
other measures now pending before the Congress of the United States, 
and antagonistic to the great brewing industry of America. 

Is it to be wondered at, under these circumstances, that the audacity 
of these associations reaches the crucial climax as expressed on page 18 
of this same Exhibit B, under the caption, "Not a Government 
bureau," where there occur these lines: 

Some suppose the reform bureau is one of the official bureaus of the Government. 

Mr. Chairman and gentlemen, even in little things these people 



HEPBURN BILL. 159 

are not faithful to the truth. Note on page 7, Exhibit B, under the 
caption ''Bills in restraint of intoxicants and opium," ''To prohibit 
liquor selling in all Government buildings." (McCumber-Sperry bill, 
S. 2352, H. R. 7034.) 

Note also on page 19, Exhibit B, under caption "Committees before 
whom the foregoing bills are pending." 

Third paragraph again occurs the words " McCumber-Sperry bill." 

Mr. Chairman and gentlemen, at all times and in all places, and in 
all of their propaganda, these associations and their officers impugn 
the honesty and intent of the brewers. 

And right here at your previous hearing, and to-day again in your 
presence, when I have spoken of the desire of the brewers of America 
to establish decency, morality, and honesty; when I liave cited to you 
the precise verbatim words and sentiments of reform, voiced b}'- those 
sterling gentlemen the presidents of our association of the brewers of 
America, Messrs. Obermann, Ebert, Brand, Kendall, and Theurer, you 
have had demonstrated to you most amply the sneers and derision and 
deprecation of those sentiments by the officers of these associations 
present. 

.Let me give you conclusive proofs of the absolute honesty of the 
brewers in their intent versus the sneers of the officers of these 
associations, and the horrible effects resultant upon the enactment of 
laws which they have created. 

Let us suppose (and I realize how difficult the stretch of imagination 
will be) that these associations and their officers did tell the truth, and 
that there were 97 saloons in Phoebus, Va., and 53 surrounding the 
National Soldiers' Home at Milwaukee, or a total of 150 saloons. 

If the brewers were not sincere in their reform, would they not 
naturally want these 150 sources of retailing their product instead of 
the two post exchanges in the Soldiers' Home which they advocate? 

Would it not be advantageous to the brewers to retain the 150 
sources of supply of the two post exchanges; were they not honest 
in striving to suppress red lights and places of disrepute? 

Just one hundred and fifty proofs, Mr. Chairman and gentlemen, of 
the brewers' honesty of purpose, versus the one hundred and fifty 
proofs of the short-sided dishones intent of the reformer. 

Why did the. brewers advocate the retention of the canteen in the 
Army ? Because during its existence in the 157 amy posts that exist 
in America and its possessions, there were just 157 canteens where 
the soldiers could purchase wholesome beer under proper control and 
discipline. 

Why do the brewers advocate the restoration of the canteen ? 

Because, since its banishment there have sprung into existence 
around these one hundred fifty seven army posts over 1,987 dives 
and "red lights." 

Just the difference between the 167 post canteens, where the enlisted 
man could secure his wholesome beer,'and enjoy the infinitesimal liberty 
of reading his book, his magazine, or smoking his pipe, or playing 
chess, or checkers, under the controlling influence of his officers, ana 
the 1,987 dives and slums which now exist around our army posts 
through the machinations of these associations and their officers. 

Just 1,880 additional proofs, Mr. Chairman and gentlemen, of the 
honesty and sincerity of the brewers' desire to establish reform and 
preserve law, order, and discipline. 



160 HEPBURN BILL. 

And in these 1,987 dives brawls, fights, law breaking, and robbery 
and debauchery are of daily and nightly occurrence. 

And away and above everything, drunkenness has increased over 
200 per cent, crime over 100 per cent, disease (of the most hideous 
kind) over 150 per cent, and insanity over 20 per cent, notwithstand- 
ing the fact that our Army has been reduced over 20,000 in hunabers, 
or over 20 per cent, since the abolishment of the canteen. 

And the testimony given at the hearing, before which the fate of 
the canteen was decided, by these associations and their officers, was 
as largely misleading as the testimony which I have exhibited here in 
this hearing on the Hepburn bill (H. R. 4072) and which they have 
manufactured and distributed to influence the passage of this Hepburn 
measure and other measures now pending before Congress. 

And this statement, regarding the testimony given by them on the 
anticanteen measure, I hold myself personally responsible to demon- 
strate and prove. 

In proof of my statement regarding the awful increase in drunken- 
ness, crime, disease, and insanity since the enactment of the anti- 
canteen law, I ask you to read the seventh paragraph on page 9 of the 
Report of the Judge- Advocate-General of the United States Army:. 

It is hardly necessary to state that the prohibition of the sale of beer in the post 
exchange has resulted in a great increase m the number of saloons, generally of the 
lowest class, in the vicinity of all posts, and consequent injury to discipline. The 
condition resultant on the practical abolition of the canteen feature of the exchange 
have been so often and so graphically described that it is needless to go further into 
the matter here than to say that the temptations to dissipation held out to soldiers 
immediately outside the reservation line of every post in this department are about 
as great as it is possible to conceive. 

And the convincing array of tables furnished by the Surgeon-Gen- 
eral of the Army in his report to the Secretary of War for the year 
ending June 30, 1903, and his concluding paragraph on page 101, which 
reads: 

The Spanish-American war, by putting the whole Regular Army into active serv- 
ice, greatly reduced alcoholism, but the rates rose again in the next two years. In 
February, 1901, the sale of beer was prohibited in post exchanges, and admission 
rates increased markedly that year. It is impossible, also, not to attribute a large 
part of the steadily increasing venereal disease of the Army to the loss of the canteen, 
where the soldier, if he so desired, could get his beer throughout the month, but 
was not subjected to the temptations to intemperance and vice now attendant upon 
the expenditure of a full month's pay at the low resorts infesting the outskirts of our 
military reservations. 

And the reports of the Inspector-General of the Army to the 
Secretary of War for the years 1902 and 1903, imges 118, 119, and 
120 report of 1902; and page 13 report of 1903, which read as follows: 

Effect of abolishing the canteen: It drives the soldier to the outside saloon and 
dive. When his money is all gone, he then takes to drinking vino and other native 
drinks, and that is fatal to his efficiency as a soldier. He is soon dead or dishonor- 
ably discharged. 

Until quite recently the post exchange, with its well-regulated canteen, has been 
one of the instrumentalities through which this has been attempted, and if , as is 
believed, it has exercised a wholesome influence on our soldiers at home, in the 
Philippine Islands it would no doubt prove to be a mental, moral, and physical 
benefaction. 

There is no fear that the sale of beer would initiate or induce habits of intemper- 
ance, as the following facts obtained directly from the companies serving in the 
division December 18 (1901) will show; nor can the post exchange be maintained 
without it: 



HEPBURN BILL. .161 

Since June 30, 1900, 307 enlisted men have been sent home insane, and Major 
Arthur, surgeon in charge of the first reserve hospital, Manila, where they have all 
been under observation and treatment, reports that 78, or 25.4 per cent were insane 
from the excessive use of alcoholic liquors. 

The habit of opium smoking among our soldiers has also been reported. 

It is hardly probable, in view of this information, that OonsTess will continue the 
prohibition against the canteen, when it is evident that the sale of beer would be a 
protection against such pernicious habits and their fatal and distressing results. 

At all posts in the department both officers and men desire that beer again be sold 
in the post exchange, to the betterment of the soldiers' fare, and furnishing him a 
club where, under proper restrictions, the soldier can get beer. 

The reports for 94 posts in the Philippine Islands show only 8 enjoying the privi- 
lege of an exchange. There were many desertions and few reenlistments at a num- 
ber of posts. Drunkenness and absence without leave are noted in reports, and 
trials by court-martial are very numerous. It is believed that a well-regulated post 
exchange and a thoroughly equipped gymnasium would accomplish more toward 
contentment and disciphne in the Army than almost anything the Government can, 
under the law, accomplish. 

And the second paragraph, on page 32 of the report of Brig. Gen. 
Fredk. D. Grant, tj. S. Army, 1903, which reads: 

The abolition of the canteen feature of the post exchange, however radical and 
positive be the objections to the light beverages formerly served therein, I may say, 
although a total abstainer myself, is regaxoed by me as a vital misfortune to the 
military service. Whatever be the convictions and prejudices of reformers on the 
subject of temperance, the fact should be apparent that the best and surest methods 
of fostering temperance is to fight against and oppose all tendency to excess. 

Why, Mr. Chairman and gentlemen, I can prove that around one, 
just one army post, since the enactment of the anticanteen law, 150 
licensed dives have sprung into existence. 

And riffht over here at Fort Myer, within the very shadow of the 
Capitol of the United States, eleven places have been licensed since 
the enactment of the anticanteen measure. 

Here are 161 more proofs of the absolute sincerity of the brewers' 
desire to establish reform. 

And this anticanteen measure, which has become a law, and 
secured through the misrepresentations of these associations, 1 claim 
and am positive that I can demonstrate to your entire satisfaction, is 
absolutely unconstitutional. 

Why, Mr. Chairman and gentlemen, let me demonstrate to you in 
Exhibit D how they misrepresented before the Senate Committee 
on Immigration in order to secure the passage of the bill eliminating 
the sale of beer in immigrant stations, which said bill I also claim to 
be unconstitutional. 

Please note the language contained in paragraphs 4, 5, and 6 on 

Gige 7, the first paragrapn on page 12 (testimony of Mrs. Margaret 
ye Ellis), and the statement of the Rev. O. R. Miller, last paragraph, 
page 12, and first and second paragraphs, page 13, as follows: 

But on looking into the parts of the building where immigrants are detained, 
sometimes for three or four days, until it can be clearly demonstrated that they are 
not likely to become paupers or criminals, there I found a man with an empty case 
of beer, to whom I said, "Where can I get a glass of beer? '* He said, **0n, there 
and there," pointing to two places inside the detention rooms. I went up to the 
boy at the entrance of one of these lunch rooms and said, "Can I get a glass of 
milk?" Hesaid, "No." "Can I get a cup of coffee?" "No." "Tea?" "No." 
But on going to the counter I bought a small bottle of laser beer, the smallest one I 
ever saw, for 10 cents; however, they would not let me take it away. "I must drink 
it in that room," I was told. But I would not drink there, or anywhere else, and 
so I saved my lO cents. There was no milk, or tea, or coffee for the men, women, 
and children waiting in that room. 

H »-04 11 




^jj-: 




HEPBURN BILL. 163 

I have been here too short a timeto personally observe whether or not any drunken- 
ness occurs in this building. I am advised that it has not occurred in the past; and I 
have given orders that no undue amount of beer shall be sold to anvone. 

Upon the question whether all sales of alcoholic beverages should be forbidden, 
opinions will necessarilv differ. Having in view the character of the people who 
come here, practically all of them accustomed to the use of light alcoholic beverages 
in their own country, I can- see no reason for preventing those who may so desire 
from obtaining a moderate amount of beer upon landiujg. At any rate, I shall for the 
present decline to recommend the change in the existing Treasury regulations upon 
this subject. 

The letter in question speaks of the immigrants being ** treated like cattle,*' and 
* * herded. " In so far as this statement mav mean that they are at times crowded, and 
that the portion of the building set over to the use of railroad companies are inadequate, 
the statement is correct. The condition is one which can not be wholly remedied 
except by the creation of additional quarters. To this matter I will, in due time, 
give my attention. 

Respectfully, Wm. Williams, Commissioner. 

And this letter from Hon. F. P. Sargent, Commissioner-General of 
Immigration: 

Department op Commerce and Labor, 

Bureau of Immigration, 
Washington^ March i, 1904- 
Mr. Duncan B. Harrison, 

71S Colorado Building^ Washington, D, C. 
Sir: In response to your letter of even date herewith, I have to inform you that 
my official connection with the Bureau of Immigration did not begin until the com- 
mencement of the fiscal year 1903, and I can not therefore reply to your question 
from my own personal knowledge. 

I am informed, however, by officials of the Bureau who were in a position to 
knowr that prior thereto for years it was the practice to furnish tea, coffee, milk, and 
food to the immigrants wherever held, pendmg the determination of their right to 
land. 

Respectfully, F. P. Sargent, 

Commissioner- General. 

Mr. Chairman and gentlemen, you will observe the distinction and 
difference between the statements of the reform associations and their 
officers and the Commissioner of Immigration of Ellis Island, who 
states positively in his report to the Secretary of the Treasury that 
beer, as well as milk, coffee, tea, and soda water, were sold in the lunch 
room of the detention room at Ellis Island. 

You will also note that the honorable Commissioner-General, F. P. 
Sargent, states that he was informed "bv officials of the Bureau who 
were in a position to know, that prior thereto (1903) for years it was 
the practice to furnish tea, coffee, milk, and food to the immigrants 
wherever held, pending the determination of .their right to land." 

I personally have lived in New York for many years of my life; for 
a number of years I was an inspector, after which special agent for the 
detection ana prevention of frauds. In the course of my duties I have 
frequently visited Ellis Island — I can without hesitation say hundreds 
of times — and I state positively and upon oath that on every one of 
my visits to the immigrant station at Ellis Island I have seen coffee, 
tea, milk, soda water, and other temperance drinks sold in the immi- 
grant station at the lunch counters. 

I further am ready to testify upon oath, and can prove my state- 
ment, that since the abolishment of the sale of beer at the immigrant 
station at Ellis Island, ever}'^ subterfuge known to man is indulged in 
in order to secure that commodity, which can be verified by all of the 
officers of the Government who have anything to do with the Ellis 
Island immigrant station since the enactment of the provision ~^ 
March 3, 1903, prohibiting the sale of beer at immigrant stations 



164 HEPBURN BILL. 

You will also note that the Commissioner of Immigration, Mr. Wil- 
liams, did not observe any of the drunkeness which it has been stated 
occurred in said immigrant station. 

Further, that he, Commissioner Williams, had been advised that 
drunkenness had not occured preceding his advent to the commission- 
ership. 

And yet, Mr. Chairman and gentlemen, on the strength of that 
testimony these associations and their oflScers succeeded in securing 
the enactment of a bill which I claim, and can unauestionably prove 
to your judicial minds, is absolutely unconstitutional. 

And yet this is the class of literature which they are distributing 
broadcast to influence legislation and crowd the Hepburn bill through. 

The saddest feature of all is their lack of Christian feeling, as shown 
in their statements contained in Exhibits D and E, viz: 

We found in Marion no saloons. In the other Homes most of them looked like 
paupers, and many of them like drunkards, which they really are. They ought to 
De in an inebriate asylum; they should not be mixed up with the better class of men. 

Mr. Chairman and gentlemen, in the name of 80,000,000 of American 
citizens I resent and denounce this statement, that '^ most" of the battle- 
scarred veterans of our wars looked like "paupers" and '"drunkards," 
and I denounce this statement as too monstrous, too foul for words or 
adjectives to adequately express. 

Further, where this same witness, Mrs. Ella M. Thacher, stated 
regarding her testimony of the Home at Dayton, Ohio — 

I saw such sights at that canteen as I hope I may never see again; for example, 
a man whose eyes had been shot out in battle was led to the counter and a big 
schooner of beer was put in his hands. I saw another man wheeled to the bar in a 
chair. That man could not go outside and get beer, I am sure. 

And these be j'^our Christian reformers! What reform, Mr. Chair- 
man and gentlemen 1 What Christian method could possibly be instilled 
in any community through depriving a poor, sightless veteran, who 
had lost both eyes in the defense of his country, of a glass of beer, or 
even a dozen glasses of beer if need be, and he desired it, in the home 
provided for him by his grateful country ? 

And the veteran in the chair being wheeled about — everybody 
knows, who has ever visited the Dayton Home, that this is the poor 
soldier who lost both legs and both arms in the defense of our flag. 

Words fail me, Mr. Chairman and gentlemen, and 1 know that your 
indignation is almost beyond suppression. I agree with one of the 
statements made by the witness 

'' That man could not go outside to get beer, 1 am sure." And if 
these two men, one without eyes, the other without arms or legs, could 
go out to get beer, fancy what would occur to them and their pension 
money in the " vile dives," which these associations and their officers 
claim exist around all the National Homes, and into whose places they 
are seeking to drive all the poor old veterans, by stealing away from 
them their post exchange. 

Statements, distortions, and lies. 

On page 4, third paragraph. Exhibit " D," the Rev. Dr. Wilbur F. 
Crafts stated in presenting the oflScers of the International Reform 
Bureau and the National Women's Christian Temperance Union and 
the National Anti-Saloon League, these words: 

These four organizations together fairly represent the sentiments of the churches of 
this country, whose membership is 27,000,000, more than one-third of our population. 



HEPBUBN BILL 165 

Mr. Chairman and gentlemen, I contend that this statement is the 
most monstrous fabrication of any of the statements made by this 
creature. 

I claim that they do not represent anj^^one but themselves, and their 
selfish, commercial ends. 

I claim, and 1 know that you Christian God-fearing gentlemen will 
support my contention, that there is not one sincere Christian in this, 
or any other land, who will accept these people and their awful false 
methods, to represent him in anything. 

1 refuse to oelieve that the most guilty criminal on earth would 
approve of the principles laid down and the methods adopted by any- 
one of these "leaders" of reform. 

Mr. Chairman and gentlemen, from the sales of beer in seven of the 
National Homes, during the fiscal year ending June 30, 1903, the gross 
profits secured were $165,099.08, divided as follows: 

Western $17,660.48 

Pacific 13,388.08 

Danville 17,562.00 

Northwestern 14, 465. 55 

Southern 21,638.66 

Central 52,565.63 

Eastern 27,828.68 

Total... 165,099.08 

These large profits are due to the fact that the brewers sell their 
products to the post exchanges at practically cost price, and the further 
fact that the old veterans have absolutely no expenses in the shape of 
rent, light, heat, advertising, etc. 

With these profits the old veterans and sailors in these seven insti- 
tutions have been enabled to enjoy the following pleasures for the past 
year ending June 30, 1903: 

Concertos, free 2, 097 

Plays, free 2,238 

Excursions, free 146 

Billiard tables purchased, free 21 

Bagatelle tables purchased, free 3 

Pool tables purcnased, free 18 

Pigeonhole tables purchased, free 4 

Sets of chess and checkers purchased, free 62 

Newspapers purchased, free 790 

BDoks 66,196 

Books read 202,254 

Boats purchased, free. 27 

Magazines purchased, free 230 

Conservatories constructed, from which flowers are grown for the sick and 

the dead 8 

In addition to the above pleasures and diversions, the gross sum of 
$56,601.40 was paid from the exchange profits on beer to civilian 
employees for services rendered in the Homes, divided as follows: 

Western $3,836.96 

Pacific 1,500.00 

Danville : 7,934.17 

Northwestern 6,653.82 

Southern 9,247.50 

Central 17,416.63 

Eastern , 9,912.32 

Total .< 56,501.40 



166 HEPBURN BILL. 

This amount was mainly used for (construction work for conserva- 
tories, etc., but it was all derived from the profits on beer sold at the 
post exchanges. 

The attendance at the above Homes during the year ending June 30, 
1903, reached the total of 30,166, divided as follows: 

Western 5,054 

Pacific 3,266 

Danville 4,073 

Northwestern 3,267 

Southern 4,390 

Central .- 6,987 

Eastern 3,129 

Total 30,166 

The number of inmates stricken blind for the year aggregate 468, 
divided as follows: 

Western 31 

Pacific 39 

Danville 20 

Northwestern 50 

Southern 48 

Central 181 

Eastern 99 

Total 468 

The number of inmates stricken insane during the year ending June 
30, 1903, aggregated 660, divided as follows: 

Western 64 

Pacific 26 

Danville 67 

Northwestern 65 

Southern 85 

Central 188 

Eastern 165 

Total .• 660 

The total transferred to the Government Hospital for the Insane 
were 111. 

The number of sick and hospital patients during the year ending 
June 30, 1903, aggregated 23,961, divided as follows: 

Western 3,694 

Pacific 3,561 

Danville 3,528 

Northwestern 2, 686 

Southern .^ . . . 2, 092 

Central 6,929 

Eastern 2,471 

Total 23,961 

The number of deaths that occurred during the year ending June 
30, 1903, reached a total of 1,742, divided as follows: 

Western 278 

Pacific 226 

Danville 138 

Northwestern 190 

Southern 269 

Central 455 

Eastern 186 

Total 1,742 



4( 



HEPBURN BILL. 167 

The average of members who died during the year ending June 30, 
1903, was 67.36. 

And those who are left, Mr. Chairman and gentlemen, the remnants 
of this gallant band of old heroes, are to be "reformed" by the same 
contingent that forced the anti-canteen measure upon our incompara- 
ble Army. What next! What next! 

The total amount of beer for the above seven homes for the year 
ending June 30, 1903, amounted to gross, $265,514. At the ratio of 
inmates, 30,166, and at 5 cents a glass (double the quantity to the glass) 
it would average about $9.50 per capita per year, equal to about 79| 
cents per capita per month, about 19 cents per week per capita, or 3| 
cents per day per capita, six days to the week. 

And this is the crime of which the old soldiers and sailors are guilty, 
and for which they are to be "reformed." 

Does it not strike you, Mr. Chairman and. gentlemen, that Mr. 

Reformer" is searching for "fly specks in black pepper?" 

Do not let the impression prevail, Mr. Chairman and gentlemen, 
that the post exchanges and the sale of beer and attendant amusements 
are the only features of the National Soldiers and Sailors' Homes. Let 
me call your attention to the following societies existing in these homes: 

Grand Army of the Republic members, 1,104, divided as follows: 

Central 243 

Northwestern 126 

Eastern .• : 123 

Southern 120 

Western 150 

Pacific 202 

Danville 140 

Total 1,104 

Union Veterans' Legion members, 817, divided as follows: 

Central 180 

Northwestern 30 

Eastern ^ 67 

Southern 87 

AVestern 84 

Pacific 189 

Danville 180 

Total 817 

Literary Club members as follows 28 

Spanish War Veterans' Society 43 

Soldiers' and Sailors' Auxiliaries to Women's Temperance Union, 
492, divided as follows: 

Central / 250 

Eastern , 114 

Southern 128 

Total 492 

Christian Temperance Club members, 514, divided as follows: 

Northwestern 121 

Southern 98 

Western 95 

Danville 200 

Total 514 



168 HEPBUBK BILL. 

It is a most striking commentary, Mr. Chairman and gentlemen, 
that the members of these temperance societies all participate in the 
plavs. excursions, concerts, boats, billiards, pool, shuffleboards, chess 
and cneckers, free of charge, and hold all their meetings free of rental 
in the theaters of these homes, all of which were and are secured and 
provided for from the profits derived from the sale of the much 
assailed beer. 

They are not rebuked for their temperance affiliations by their 
comrades who do drink beer; there is no reflection cast upon them for 
not contributing their share for the building of the theaters of which 
they have free use, and for their participation in the pleasures pro- 
vided for them free of cost through the profits made on the sale of 
beer. No, gentlemen, the old soldiers and sailors are too broad, too 
liberal, to make such a discrimination. 

In these resting places of our veteran heroes, peace and affectionate 
comradeship prevail, irrespective of religion, sect, nativity, or creed. 
The uniform universally worn, and the fact that they all fought under 
the one flag for our country, is the Quintessence of their fraternity. 

There is but one danger of discord, and that is the passage of this 
measure now before you which would debar the veterans from their 
little luxuries and innocent amusements — all that is left to them in the 
short span of life before them. 

The only thinjg they dread, outside of the approach of the grim 
reaper, is the meddlesome, unwarranted interference with their fun- 
damental rights of liberty of thought and the interference with their 
established customs — theirs, and theirs alone, by the rights of law, of 
justice, and of gratitude of our nation. 

Right here, with your permission, I will quote a letter received by 
me a few days ago from Maj. Gen. R. C Drum, retired, for years 
Adjutant-General of the United States Army: 

Maj. Duncan B. Harrison, 

Washington^ D. C. 
The sale of beer and licht wines was authorized by one of the best temperance 
men in public life, President Rutherford B. Hayes. No one who has been in a 
position to form correct judgment on the subject doubts for one moment that the 
President's action was right. 

R. C. Drum. 

Mr. Chairman and gentlemen, up to June 30, 1903, in the seven 
soldiers and sailors' homes which I nave cited as fair examples of the 
f ort3^-one homes established, there were veterans of our wars who had 
sustained the following wounds: 

Loss of both legs and both arms. 1 

Loss of both legs « 7 

Loss of both arms 4 

Loss of one arm and one leg 1 15 

Loss of one arm 170 

Loss of one leg 208 

Other wounds 1, 508 

Stricken blind 468 

Stricken insane ' 660 

Other diseases 22,903 

Total 25,944 

A terrible, heartrending, awful array, Mr. Chairman and gentlemen, 
that 1 wonder — I marvel — how any man or men could advocate or even 



HEPBDBN BILL. 



169 



think of curtailing from these poor creatures any of the infinitesimally 
little pleasures left to them in this life. 

Ana these poor, maimed, blind, insane, and battle-scarred veterans 
are all that are left of our ''Boys in blue," whom we are prone to 
laud, to sing of, and to praise. 

And yet we tolerate the thought of these ''reformers" (God save 
the mark!) denying the right to fliese poor remnants of our legions to 
drink their beer, to talk over the battles fought for us, to witness 
their plays, to hear their music, to indulge in their innocent amuse- 
ments, to play their games, to smoke. 

Oh, Goal that each poor wound could speak in opposition to such 
reform! 

What would be the result, Mr. Chairman and gentlemen, if this 
measure should become a law? It is too horrible to picture even in- 
imagination. According to the present law no place for the sale of 
liquors is -permitted to exist within the radius of a mile limit of the 
National ooldiers and Sailors' Homes, therefore, our poor veterans 
would have to limp and hobble and be led a mile or more from the 
outskirts of the Home in order to get their beer, for drink it they 
will, and shall. 

Their average age last June was 64.13, but in this average there is 
included 7,317 members of ages from 70 to 100 years, divided as follows: 

From 70 to 80 years old 6,747 

From 81 to 90 years old 544 

From 91 to 100 years old 26 

Divided in the various Homes as follows: 





From 

70 to 80 

years old. 


81 to 90 
years old. 


91 to 100 
years old. 


Central 


2,016 
906 

1,156 
398 

1,139 
484 
655 


88 
186 
16 
27 
121 
37 
69 


None. 


Northwestern 


12 


Eastern 


2 


Southern 


1 


Western 


4 


Pacific 


4 


Danville 


8 






Total 


6,747 


544 


26 







It seems hardly possible to me, gentlemen, that even a professional 
reformer could make much progress in correcting habits formed by 
men of such venerable years. 

If the ''reformers" have their way we shall witness the hideous 
spectacle of these poor old creatures seeking their comforts beyond 
the limits of the Homes. 

Dives of the most vicious character would spring into existence at 
the mile limit prescribed by law. The "red light" would wave, and 
these poor old veterans would be drugged, robbed, beaten, and thrown 
out to die, as happened around all of the army posts to the young, stal- 
wart, active soldiers when the canteen was suppressed by these self- 
same "reformers." 

But then the " reformers" would have achieved another victory, and 
their donations would multiply correspondingly. 

The strains of music and tne lilt of song, the one great pleasure left 
to the blind, would cease. 



170 HEPBURN BILL. 

But ''reform" and ''reformers" would score another triumph. 

The little pleasure trips, excursions would be stopped; the games 
would wear out and their boats rot away. 

But the "reformers" would have another inning. 

Insanity would increase fourfold. 

But the professional "reformer" would wax fat, and lean back in 
his cushioned chair in his splendidly equipped office and smile and say 
with gloating satisfaction, "We did it with our bill." And then he 
woula issue more propaganda; secure additional contributions and 
haunt the halls of Congress, and button-hole Members and Senators 
and look for other victims to " reform." 

When they pushed the anticanteen measure they placed a premium 
on crime. 

In this attack upon the old veterans they establish the crime itself. 

Mr. Chairman and gentlemen, I solemnly declare, and statistics will 
bear me out, which 1 will present before you to prove my statement, 
that wherever these " reformers" have caused their measures of reform 
to be established affecting the beer interests, those measures have 
redounded to the advantage of the "red lights," speak-e|Lsies, and 
crime. 

Wherever enforced prohibition exists there exists proportionately 
to a greater extent its counterpart deceit — lying, cheating, and crime. 

To the sincere reformer 1 say, God bless and God speed you! To 
the deceived reformer I say, God help you, for yours will be a rude 
and unhappy awakening. To the professional reformer, I pray God 
take you, and quickly I . • 

Mr. Chairman and gentlemen, the great divine, the Rev. Henry 
Ward Beecher, voiced the sentiments of all mankind when he said: 
"When you tell me 1 ought not to drink, I may agree with you; 
when you tell me I shall not drink, I will, because it is my natural 
right." 

1 beg to call your attention to the names of the gentlemen who are 
managers of the National Homes: 

The President, the Chief Justice, the Secretary of War, General 
McMahon, General Mitchell, Colonel Steele, General Pearson, General 
Anderson, Colonel Cook, General Henderson, General Brown, Major 
Bonsall, Captain Palmer, and Colonel Brownlow. 

According to the reformers, these sterling gentlemen, and all of 
their predecessors from the institution of the Soldiers and Sailors' 
Homes to the present moment, have been guilty of a great and griev- 
ous wrong in permitting the old soldiers and sailors, the wards of our 
countrv, to indulge in the petty liberty of a glass of beer when 
desired, and the pleasures that that indulgence provides. 

According" to the theory of these reformers, the average of 3^ cents 
a day, which the veteran soldier and sailor pays for his beer, is practi- 
cally a debauch in the estimation of these "sainted" gentlemen. 

According to the claims of these associations, our honored Presidents, 
General Grant, General Hays, General Garfield, General Arthur, Mr. 
Cleveland, General Harrison, Major McKinley , and Colonel Roosevelt, 
severally and collectively, countenanced a heinous offense upon sobriety 
and morality by permitting these poor old veterans to have their beer. 
I only ask you to compare the list of our foremost men just mentioned 
with the individuals who are advocating this bill. Further comment 
is unnecessary. 



HEPBURN BILL. l7l 

You will note in Exhibits D and E. Exhibit D, page 5, 7th para- 
graph, and Exhibit E, last paragraph, page 1, how the superintendent 
and treasurer of the International Reform Bureau strives to fasten upon 
General Patrick, of the Soldier's Home at Dayton, this statement: 

The beer hall is the property of the United States, and can not be taxed. It is 
entirely under the control of the council of administration. 

Mr. Chairman and gentlemen. General Patrick was universally 
termed the dean of the National Soldiers' Homes, he was one of the 
inceptors of the National Homes, and was recognized as a man of more 
than usual pi'ominence. His name is national. 

General Patrick was absolutely a total abstainer, and fought the 
question of the introduction of beer into the Soldiers' Homes bitterly; 
but finally, after a trial, recognized its value as a controller of the 
veterans and adopted it as a method of reform. In one of his 
speeches, which 1 present to you, General Patrick stated: 

I was formerly a prohibitionist in New York, but I found the leaders were corrupt 
politicians, and those in the legislature unreliable, so I left them. 

This speech of the honest, blunt old general has never been forgot- 
ten or forgiven, hence the animus. 

Mr. Chairman and gentlemen, I think you will concede that the 
measure now before you, the Hepburn bill, 4072, would never have 
been heard of if it had not been for the pernicious activity and false 
representations of these associations and their officers. 

1 stated in my opening that 1 was not an orator; I certainly make no 
claim at being a lawyer. 

But I maintain that any and every citizen has the right of personal 
liberty so long as he conforms with the law. 

I maintain that the brewers of America have established the right 
to the claim of citizenship; that they have in every way conformed 
with the laws of their country; that their taxations have been complied 
with; that they have met every demand ever made upon them by both 
National and State governments. 

1 maintain that with the acquiesence of the National and State gov- 
ernments they have established their trade, and based on the establish- 
ment of that trade, with the consent of the National and State govern- 
ments, that they are entitled to protection from interference in that 
trade. 

And that the National and State governments can not justly enact a 
law to despoil them of what they have not onh' sanctioned but partici- 
pated in. 

The government which takes away from its citizens what it can not 
restore performs a rank injustice. 

Particularly when the instrument employed is proven to emanate 
through deceit, fabrications, and misstatements such as I have exhibited 
to you. 

Enforced prohibition is the brother of lying, of treachery, of deceit, 
of lawbreaking, and I have proven it so to be by the evidence 1 have 
presented. 

If this bill becomes a law you will see the same scenes enacted which 
I witness every year in my home in Maine, which 1 have frequently 
witnessed in other prohibitive States. 

Violations of the law, wholesale drunkenness, deceit, lies, speak- 
easies, and subterfuges of every nature, the ver}^ things the brewers 
are striving to stamp out. 



172 HEPBURN BILL. 

And what does this Hepburn bill present from the standpoint of 
analytical law? It simply is a vehicle to force Congress to enact a 
national law to perform the police duties of States. 

It is a contemplated reversal of every law heretofore presented and 
enacted. 

It is a contemplated violation of the Constitution, which states: 

Section VIII — Powers granted to Congress. — ^The Congress shall have power: (1) 
To lay and collect taxes, duties, imposts, and excises, to pay the debts and provide 
for the common defense and general welfare of the United States; but all duties, 
imposts, and excises shall be uniform throughout the United States. 

Therefore 1 maintain that the Hepburn measure is unconstitutional, 
for the reason that all excises shall be uniform throughout the United 
States. Ergo, Congress can not enact a measure that would lack in 
uniformity of excises. 

The Hepburn bill, 4072 (H. R.), expressly stipulates that — 

All fermented, distilled, or other intoxicating liquors, or liquids, transported into 
any State or Territory for delivery therein, or remaining therein for use, consump- 
tion, sale, or storage therein, shall, upon arrival within the boundary of such State, 
before and after delivery, be subject to the operation and effect of the laws of such 
State or Territory enacted in the exercise of its police powers to the same extent and 
in the same manner as though such liquids or liquors had been produced in such 
State or Territory, and shall not be exempt therefrom by reason of being introduced 
therein in original packages, or otherwise. 

This provision is a matter absolutely for the State laws, and the 
State laws only, to control. 

And 1 maintain that if the Congress of the United States were to 
enact this measure it would be interfering with '* States' Rights." 

Further, that it would specifically violate that provision of the Con- 
stitution which stipulates that ''all excises shall be uniform through- 
out the United States." 

In other words, the Hepburn bill admits of the construction that 
the National Government shall enact a provisionary law, nonuniform, 
allowing "A" to sell fermented, distilled, or intoxicating liquors or 
liquids m the District of Columbia, and denying "B" the right of sale 
of the same commodities in the State of Maryland. 

These are matters purely for the consideration of State governments 
to control. 

My contention I find is supported by the Supreme Court of the 
United States in Downes v. Bidwell, 182 U. S., 259. 

Loughborough v. Blake, 5 Wheat., 317, was an action of trespass (or, as appears by 
the original record, replevin), brought in the circuit court for the District of Colum- 
bia to try the right of Congress to impose a direct tax for general purposes on that 
District. 3 Stat., 216, c. 60, Fed. 17, 1815. It was insisted that Congress could act in 
a double capacity; in one as le^slating for the States, in the other as a local legisla- 
ture for the District of Columbia. In the latter character, it was admitted that the 
power of levying direct taxes might be exercised, but for the District purposes only, 
as a State legislature might tax for State purposes; but that it could not legislate for 
the District under Art. I, sec. 8, giving to Congress the power "tolay and collect 
taxes, imposts, and excises," which ^* shall be uniform throughout the United 
States," inasmuch as the District was no part of the United States. It was held that 
the grant of this power was a general one without limitation as to place, and conse- 
quently extended to all places over which the Government extends, and that it 
extended to the District of Columbia as a constituent part of the United States. 

Again, Knowlton v. Moore (178 U. S., page 42): 

The provision in section 8 of Article I of the Constitution that ** all duties, imposts, 
and excises shall be uniform throughout the United States," refers purely to a geo- 



HEPBURN BILL. 178 

graphical uniformity, and is eynonymous with the expression **to operate generally 
throughout the United States.'* 

Mr. Justice Miller, in his lecture on the Constitution (New York, 
1891), pp. 240, 241, said of taxes levied by Congress: 

One of the learned counsel ]f uts it very clearly when he says that the correct 
meaning of the provisions requiring duties, imposts, and excises to be "uniform 
throughout the United States ''^ is, that the law imposing should "have an equal and 
uniform application in every State in the Union." 

In the celebrated trial of the Head Money cases, 112 U. S., p. 694: 

The Congress shall have power to lay and collect taxes, duties, imposts, and 
excises to pav the debts and provide for the the common defense and general wel- 
fare of the United States; but all duties, imposts, and excises shall be uniform 
throughout the United States. 

The uaiformity here prescribed has reference to the various localities in which the 
tax is intended to operate. "It shall be uniform throughout the United States." Is 
the tax on tobacco void because in many of the States no tobacco is raised or manu- 
factured? Is the tax on distilled spirits void because a few States pay three-fourths 
of the revenue arising from it? 

And these are the opinions of the Supreme Court of the United 
States, which in my conviction apply directljr to the Hepburn bill, 
which, as you now know, emanates directly from these as30ciations, 
and which," in conjunction with other bills mentioned in their propa- 
ganda, they claim as theirs. 

There is no limit to their claims through the great commendable 
democratic feature of this, our great Republic. 

The proverbial open door of Congress, the open halls of legislation, 
where the humblest petitioner can be heard, the leaders of these asso- 
ciations, armed with the raiment of their supposed Christian calling, 
have obtained a foothold, which thev have more than abused. 

I'll guarantee the trutn of one of their statements, that they have 
distributed millions of documents throughout the world; but nearly 
everyone of these documents distributed by them have been sent in 
violation of the law of Government franking, and I challenge them to 
dispute my statement. 

1 have positive information that tens of thousands of the pamphlet. 
Senate Document No. 150, with its abuse and slanders upon the brew- 
ers and German-Americans who appeared before you at the last 
hearing — ^and are here to-day. This document, with its other mis- 
representations, its self-glorifications of the individual styling himself 
"founder," ''inceptor," ''superintendent," ''Christian lobbyist," 
"chairman of the third house of Congress," and "treasurer," always 
treasurer, and being distributed under Government frank, free. Free 
to them, but at the expense of the taxpayer. 

Thus we have the startling anomaly of a partnership forced by them 
upon the Government, in which the Government is deceived into dis- 
tributing abusive, libelous literature against th^ millions of German- 
American citizens and the brewers and their industry with one hand, 
while with the other hand the tax is taken from the brewers to pay 
for the circulation of said libels and slanders. 

I maintain without fear of successful contradiction that every time 
these societies distribute a Senatorial or Congressional frank they 
either slander, vilify, or violate the law; and I respectfully submit the 
following franked packages distributed by these various associations 
in support of my statement. 



174 HEPBURN BILL. 

Mr. Chairman and gentlemen, in conclusion, let me in behalf of the 
brewers of America stete: 

This expos6 of the false doctrines and falser methods of these cor- 
rupt leaders of these associations is not a blow at reform or a stab at 
Christian endeavor. 

On the contrary, it is like a thunder shower in torrid weather, sim- 
ply a clearing of the atmosphere surcharged with oppression and 
unbearable humids. 

The brewers want and seek, and enact, honest, judicious reformation 
of standard abuses. 

The chicaneries and dishonest methods of the leaders of these reform 
associations (it must be patent to you, thinking, gentlemen) required 
exposure and upheaval, and the result will be a clearing of the moral 
atmosphere. 

Christian reform, honest endeavor has not received a setback — no, a 
thousand times no. It has simply had its eyes opened to several facts, 
absolute facts. 

First. Its methods were wrong. 

Second. Its leaders had adopted these methods, which were both 
unscrupulous, dishonest, drastic, shortsighted, retroactive, and which 
put their associations always in a false light, and eventually on the 
defensive. For the laws of justice, of nature and of God, will invari- 
ably remedy such evils and expose them. 

They now see their leaders snorn of their powers to self -aggrandize, 
to deceive, and to secure self -emolument, and their perniciousness dem- 
onstrated, and will reaHze that any man or men, association, industry, 
or nation, must have clean hands before they call attention to the 
soiled condition of others^ 

They now see the brewers as they should be seen, not with a crown 
of glory, or surrounded with a halo, but as sincere, self-respecting, 
dignified, God-fearing citizens, progressive, honest, and jealous of 
their integrity. 

They will, therefore, concedetothem what is their just due, respect, 
and appreciations. It will brinff them into closer relationship, and 
perhaps they will accept the hand the brewers extend, and assist the 
Drewers in their practical and only effective methods that always have 
and always will be resultant in the achievement of the elimination of 
vice and iniquity. 

You will, gentlemen, I trust, concede the temperate language I have 
used in contrast with the terms the officers of these associations have 
applied to my principals and their industry. 

True, all the adjectives in the vocabulary could be used and then be 
inadequate to fully condemn the practices and methods in which they 
have indulged to attain their ends. But abuse is not for me, nor for 
the brewing industry to adopt. 

We prefer to leave them to their own consciences to take them to 
task, and for their duplicity they must answer to their people, to you, 
gentlemen, and to their God. 

I regret more than I can express that it was necessary so include 
some of the women of these associations in this expos6, for I fully 
and honestly believe that they have been largely misled and imper- 
sonally vindictive; perhaps there are private reasons for their vindic- 
tiveness which are too sacred to probe, and which we must all respect. 

And now, Mr. Chairman and gentlemen, I desire, in your presence 



HEPBURK BILL. 175 

and in the presence of my officers and principals, to state, with their 
full approval, that the brewers of the United States of America ask 
for honest, practical reform, not reform such as the Hepburn bill 
(H. R. 4072) proposes, for its enactment would, as 1 have proven, be a 
repetition of the bills "crowded" through Congress by these associa- 
tions, and would result in the further establishment of red lights, vice, 
dives, crime, and deceit, such as has resulted through the enactment 
of the anticanteen measure, such as can be seen and does exist in 
every enforced prohibitive community, where the words "Thou shalt 
not" meet with the response," What right have you to deny and deprive 
me? I can and will." 

And then, by every subterfuge known to the ingenuit}^ of man, by 
all secretiveness and design which the human mind can formulate, 
evade the laws and secure the. commodity through deceit, strategy, 
prevarication, and violation of the enforced law. 

But the brewers are practical men, and desire to place themselves 
on record as stating that they will both help and lead in practical 
methods of reformation of abuvses, and voluntarily accept and adopt 
anv reasonable measure to correct them. 

Mr. Clayton. 1 move to adjourn. It is after 5 o'clock. 

The motion prevailed, and thereupon, at .5.15 o'clock, the committee 
adjourned until to-morrow, Thursday, March 3, 1904, at 10.30 o'clock 
a. m. 



Thursday, March 3, 190J^. 
The committee met at 10.30 o'clock a. m., Hon. John J. Jenkins in 
the chair. 

STATEMENT OF £EV. F. E. C. HAAS. 

Mr. Haas. Mr. Chairman and gentlemen of the Judiciary Com- 
mittee, thanking you for the kindness that 1 am allowed to speak 
before this respectable and honorable committee, I would like to say 
that 1 will not take too much of your most valuable time. 

I am a minister of the gospel, an American, not by birth, but by 
choice, of German descent, and my work is especially confined to the 
German-Americans of this country. 

I have the honor to introduce myself to you as pastor of the German 
Evangelical Church of Newark, N. J., which is the oldest German 
church of that city, and among the members of which were different 
esteemed gentlemen who served indifferent high positions, not only in 
the State of New Jersey but also in our National House of Representa- 
tives. I only mention the names of the gentlemen Lehlbach and 
Fiedler. I am also a member of the German Evangelical Synod of 
North America, a synod which represents a body of about 1,100 con- 

fregations, 900 ministers of the gospel, scattered all over the United 
tates of America from the Atlantic to the Pacific oceans. And for 
some six years 1 have been secretar}^ of the Atlantic district of this 
synod. 

I state this not as if 1 wished to boast of my position, but simply 
to show that there are great numbers of churches and church mem- 
bers who do not believe in prohibition, but who deem it their right 



176 HEPBUBN BILL. 

not to be governed in their life as Christians and citizens by prohibi- 
tionists, knowing very well and believing firmly that true Christianity 
has nothing whatsoever to do with prohibition. 

For what is Christianity, or what does Christianity mean? Chris- 
tianity is a firm belief in God, who has given himself to us for a Father 
through his only begotten Son, Jesus Christ, for all who believe in 
Him, and who governs and leads us by His holy spirit, as St. Paul says 
in the Bible (Romans viii, 14-15). 

For as many as there are led by the spirit of God, they are the sons of God. For 
ye have not received the spirit of bondage again to fear, but ye have received the 
spirit of adoption whereby we cry **Abba, Famer." 

This means Christianitv, and in this manner I maintain myself to be 
a Christian, honestly and truljr, and therefore I protest against any 
external force or coercion — as is involved in prohibition — not coming 
from the spirit of God. For the Bible says (St. John viii, 32), "Ye 
shall know the truth and the truth shall make you free." Therefore, 
being free as a Christian, I know what I have to do or not to do, and 
as such I do neither want nor need any prohibition. 

But, says the other side, prohibition means to prohibit the people 
from making, selling, buying, or using such an awful thing as liquor 
is, considering as liquor all fermented, distilled, or other intoxicating 
liquors or liquids. And furthermore they claim that it is depravity — 
which certainlv means a very bad sin — to use, make, sell, or buy any 
liquor of this kind. 

If this were true the Bible and even our Lord and Master Jesus 
Christ did teach us to commit sin as might be clearly seen by listening 
to the following words from the bible: "Noah, whom St. I^eter calls 

Seter II, 5) 'a preacher of righteousness,"' made wine and drank it. 
elchizedek, "the priest of the most high God" (Genesis XIV, 18), 
brought forth bread and wine to Abraham and his young men. Isaac 
in blessing his son, Jacob, said unto him (Genesis AXVII, 28), "God 
gives thee of the dew of heaven and the fatness of the earth and 
plenty of corn and wine." Speaking of the manifold blessings and 
graces which God has given to mankmd, the poet of the 104:th Psalm 
names, "Wine that makes glad the heart of men" (verse 15), and in 
the Proverbs we find (Proverbs XXXI, 6), "Give wine into those that 
be of heavy hearts." 

And what will we say if we read that Christ himself made wine at 
the wedding feast in Galilee, and that this wine was real good and 
strong was clearly to be seen from the words of the governor of the 
feast, who as an expert praised the very goodness of it (Job 11, 1-11). 
Yes, even Christ himself drank wine, not only during the holv supper, 
which he told us to celebrate often as a remembrance of his death, but 
also during his life time, as might be seen by his own words, where 
he says to the Jews (Luke VII, 33, M), "John the Baptist came neither 
eating bread nor drinking wine; ana ye say he hath the devil. The 
son of man has come eating and drinking; and ye say, behold, a glut- 
tenous man, and a wine biber, a friend of publicans and sinners." 
And the greatest of all aj)ostles, St. Paul, gives the following advice 
to Timothy, his young friend and brother (I Tim., v 23), "Drink no 
longer water, but use a little wine for your stomach's sake, and thine 
other infirmities." An advice which if followed would doubtless be 
very good to many of those who proclaim and tight for prohibition. 



HEPBIJBN BILL. 177 

Now, Mr. Chairman and gentlemen of the committee, although 1 
could do so, I will not brinff up more words out of the Bible, thinking 
that I have proved to you tne verity of my statement, that true Chris- 
tianity has nothing whatsoever to do with prohibition. Therefore, we 
stand by and live up to the words of St. Paul, who wrote to the 
Colossians (Col. ii, 16), "Let therefore no man judge you in meat or 
in drink," and we do that, not as anarchists, as it was said yesterdav, 
but as true Christians, understanding rightly and following strictly 
the evangel of Christ and his desciples. 

We know very well that there are synods and church bodies in the 
United States — Methodists, Baptists, and others — who make total 
abstinence from liquor a condition of membership, but what I would 
like to say to them is this: 

Firstly, I do not belie\^e that the question of prohibition is a ques- 
tion of Christianity at all. and thereiore I protest against prohibition 
as being a principle of Cnristianity. 

Secondly, I dare to say that as far as the real German Evangelical 
churches in this country are concerned, at least nine-tenths of the 
regular members of these churches are against prohibition of any 
kind, deeming it one of their holiest rights to eat and drink whatever 
they find good for them, and taking these things as a gift f lom the 
hands of flieir Father in Heaven. 

And therefore in the name of true Christianity I ask you to vote 
against the Hepburn-DoUiver, or any other bills trying to prohibit 
people from getting whatever they lite to eat and drink. 

STATEMENT OF BEY. FBEBEBICK WISCflAN, FASTOB OF THE 
OEBMAN-LUTHEBAN CHimCH (ST. PAUL'S CHUBCH), PHILA- 
DELPHIA, PA. 

Mr. WiscHAN. Mr. Chairman and members of the conmiittee, I am 
not in the service of brewers or saloon keepers, but I am a minister of 
the Gospel in the service of God, the Almighty. 

I have the true temperance question at heart, and that is why I came 
to Washington to-day. 

I am born of Christian parents. My father was a pastor in Ger- 
many, and my parents taught their seven children temperance in food, 
drink, dress, and so forth. I have never taken a glass of whisky in 
my life, but wine and beer are used at home with our meals. 

I have been pastor of a German Lutheran congregation in Philadel- 
phia for 34 years, and do not preach sensationalism, but the Gospel, 
the true teaching of the Holy Scriptures. I preach temperance in all 
things, and, therefore, also in food and drink. I caution my members 
against gluttony and drunkenness, but I also caution them against the 
hypocracy of the total abstainers. For the past six years I have 
renounced voluntarily, and have not touched a drop since that time of 
beer or wine, but I have wine in my home, and I teach my sons and 
daughters to drink moderately. 

The Mohammedans in Turkey and the Mormons in all countries 
forbid the use of wine and beer. And there are many churches in 
our country that reject the use of wine for their holy communion; 
they substitute for it water, or milk, or unfermented grape juice. 
These teachers want to be more pious than Jesus and His apostles. 
H B— 04 12 



178 HEPBURN BILL. 

The Jews partook of wine at their Passover. Each father drank 
from his cup, and then passed it to every member of the family. 
Jesus administered the same genuine wine at the first communion. 
The first Christians used it, and for the past 19 centuries this actual 
wine has been used for the Lord's supper. Why, I have a friend 
who was formerly a pastor in Dakota. In order that he might have 
wine shipped from Chicago for use at holy communion, the shipper 
was obliged to mail the box "eggs." 

Against any such hypocrisy I protest strongly, and the whole church 
council of my congregation have resolved to protest against this law. 

Of course, as loyal citizens of the United States, we must obey its 
laws. But the lawgivers of our country should not enact laws which 
are opposed to the word of God. 

And, in short, what we wish is what was said yesterday. I read it 
in the paper this morning. The question is, ''Would you have any 
objection to a provision being placed in the bill to the effect that it is 
not intended to interfere with the private or family use of liquors?" 
That is our question and our standpoint. 

I thank you very much. 

STATEMENT OF £EV. 0. A. BOEHBIO, OF PITTSBUBO, PA. 

Mr. BoEHRiG. Mr. Chairman and gentlemen of the committee, I 
am not a brewer, I must say; as you know, not a liquor dealer; I am 
a minister of the gospel. 

It was to my great astonishment that yesterday a line was so sharply 
drawn between &erman- Americans — and whom ? And what ? Since I 
have sworn allegiance to this country, that, is fifteen years, I always 
considered and called myself an American citizen, and although I am 
but an adopted son of this, our free country, I love it nevertheless, and 
I love the people living within its borders, and I like fully to do my 
duty as citizen as well as minister in my vocation. 

Our duty is not only to preach the word of God, but in doing so to 
build up the character of men and to lead men to the freedom of the 
children of God. This aim can never be forced, nor can it be attained 
by external coercion. 

It is nothing but an inwardly growing — that is, a growing, of the 
inner man — of the character of man. All prohibition measures are 
nothing but external coercion, by which men will never grow internally. 
All such external measures seem to me unworthy of free people. We 
should try to lead men to inner strength and freedom. It is true we 
pray to our God "And lead us not into temptation," but we know also 
well enough that temptations must be in this world, that man must 
struggle against temptations, that life in itself is combat and struggle. 

The insinuation has been made that church members really wish such 
prohibitive measures as are provided for in the^Hepburn bill. Kindly 
allow me to state that there are thousands and hundreds of thousands, 
yea, millions, of good and Christian church members who deem such 
measures inexpedient. 

I myself am representing not only my own congregation in Pitts- 
burg, but I am a representative of the whole independent United 
Evangelical Protestant Church of North America. Among them all, 
I might assure you, you will not find one voice for prohibition, neither 
of man nor woman, but all are against prohibition of any kind, and 



HEPBURN BILL. 179 

still they are Christians, and still they are all honorable men and women, 
and are temperate. 

I, myself, if you will excuse me gentlemen, come from that part of 
the Iron City which is called Temperanceville. It was stated here 
yesterday that women especially advocate such prohibitive measures. 
Truly, I must pity every woman whose husband is a drunkard and 
can not be restrained except by utter force. I am afraid he will 
never be restrained and will never become a man, notwithstanding all 
prohibitive measures. Indeed, the women of my congregation were 
]ust as eager to set their names to antiprohibition. They want free- 
dom for tneir husbands; they want free men — no slaves in any sense. 
They want no hypocrites. They want their husbands to be true, 
sincere, and upright men. 

So, not for the sake of any special man or class or party, but for 
humanity's sake, for the sake of morality, for our great nation's sake 
I should humbly and earnestly entre?,t you gentlemen to vote against 
any such prohibitive measure in the name of tne principles of the Inde- 
pendent United Evangelical Protestant Church of North America. 

Mr. Thomas. Is it your position that there should be no legal restraint 
upon the sale of intoxicating liquors? 

Mr. BoEHRiG. I am against prohibition of any kind, and so are our 
congregations. 

Mr. Thomas. That there should be no legal restrictions at all on the 
sale of intoxicating liquors — that the sale should be free and unre- 
stricted by law? 

Mr. Boehrig. Oh, no; we are all law-abiding people. If there is 
any law we will stay by the law. 

Mr. Thomas. But your position is that there should be no law against 
intoxicating liquors. 

Mr. Boehrig. No prohibition law. 

Mr. Thomas. You are opposed to restrictions on the sale of intoxi- 
cating liquors; that is your position? 

Mr. Boehrig. Yes, sir. 

Mr. DiNWiDDiE. Could I ask if the gentleman officially represents 
the church to which he belongs? 

Mr. Boehrig. Yes, sir; I have been sent here from the body of the 
ministers to represent them. 

Mr. DiNWiDDiE. The whole church? 

Mr. Boehrig. The church. 

Mr. Dinwiddie. I would like to get this clear. Will you kindly 
state what body has taken the action which you represent; was it a 
local body, or your local church, or some general local body? 

Mr. Boehrig. It is the Ministers' Association of the Independent 
United Evangelical Protestant Church of North America. I am a 
member of that, and I am the editor of our paper, and I have been 
admonished to come here. 

Mr. Dinwiddie. An independent church. How many ministers 
in it? 

Mr. Boehrig. Fifty-four. 

Mr. Dinwiddie. How many members? 

Mr. Boehrig. Sixty congregations. We had 66,000 names when 
we petitioned for the opening of the World's Fair on Sunday 10 years 
ago. 

Mr. Dinwiddie. And when and where was the action taken against 



180 HEPBURN BILL. 

this measure; at what meeting, at what convention, or synod, or con- 
ference, where the oflScial action was taken? 

Mr. BoEHRiG. We had no special meeting for that purpose. We 
were all together, but we had no special meeting for that purpose. 

Mr. DiNwiDDiE. It was not official action, then? 

Mr. BoEHRiG. 1 was asked to write about that at the last meeting, 
four weeks ago, and then we had a funeral and we were all assembled — 
all the members. 

Mr. DiNWiDDiE. It was not a regular meeting? 

Mr. BoEHRiG. It was not a regular meeting 

Mr. DiNWiDDiE. No official action taken. 

Mr. BoEHRiG. But the members of my church sent in the petition. 

STATEMENT OF EEV. W. OESEE. 

Mr. Oeser. Mr. Chairman and gentlemen of the committee, I am 
the pastor of a promising congregation in the city of Philadelphia; I 
have been the pastor of that congregation for the last fifteen years; 
I am a minister of the old ministerium of Pennsylvania, which a few 
years ago celebrated its 150th anniversary. I am a member in good 
standing of that old ministerium whose founder is well known, the 
reverend Mr. Muhlenberg. The gentleman who just spoke a while 
ago is a member of the same ministerium. 

My congregation is entirely German. We are certainly law-abiding 
citizens, and we try and strive to uphold the laws of this land. But, 
nevertheless, we try to struggle against the passage of any such laws 
as this one now before the committee. We do not want to be restricted 
in anything which pertains to our personal liberty, and it is certainly 
a personal right to take into our houses and put on our table whatever 
we choose to eat and drink. Therefore, I am here to express the sen- 
timents — and therefore, I say, I am heartily in favor of all the senti- 
ments that were expressed by the speakers who have just spoken. 

I have been in this country now almost twenty-five years, and I have 
labored among the Germans in the States of Nebraska, Missouri, 
Alabama, and Pennsylvania, and I know the sentiment of my country- 
men. Although they are all good law-abiding citizens and Christians, 
they are nevertheless striving to retain freedom in their houses and 
homes, and to retain their ireedom regarding their food and drink; 
and as a representative of those law-abiding and still freedom-loving 
people I stand here and I say ''Keep your hands off and do not report 
this bill for passage." The Germans, the German- Americans, the 
law-abiding German-Americans will not look with favor on the passage 
of this bill, and will not be with you. That is all I have to say, and I 
thank you for your courtesy. 

Mr. DiNwiDDiE. At this point I will be glad to introduce Represent- 
ative Scott, of Kansas, who will have all tne time he desires before the 
committee in support of the bill. 

STATEMENT OF HON. C. F. SCOTT, A EEPEESENTATIVE IN CON- 
OEESS FEOM THE STATE OF KANSAS. 

Mr. Scott. Mr. Chairman and gentlemen of the committee: I have 
not attended these hearings until I came to the room a few minutes 
ago, and I feel, therefore, as if I ought not to attempt any extended 



HEPBURN BILL. 181 

argument upon the bill, for the reason that I should be very likely to 
simply cover ground that has been covered and make suggestions that 
have already been made more forcibly and clearly than I could make 
them. 

I wish therefore primarily simply to appear as a representative of 
public sentiment. Of course I can speak for the public sentiment of 
no State except my own. You will all takie notice of the fact that 
Kansas is a prohibition State. That law went upon our statute books 
in pursuance to the constitutional amendment more than twenty years 
ago. It has been seriously attacked a great many times. In fact, in 
nearly everj'^ campaign since that time one political party has arrayed 
itself against that law and another in favor of it, and the people have 
uniformly stood by the law for the past twenty-five years, showing 
that where prohibition is attempted the people approve of it. And it 
is as representing that sentiment that I wish to urge you to report this 
bill to the House. 

Mr. Henry. Mr. Scott, would it interrupt you to ask you a 
question? 

Mr. Scott. Not at all. 

Mr. Henry. I would like to have you state substantially what the 
prohibition law is and what the exceptions to it are. 

Mr. Scott. We adopted in 1881 a constitutional amendment for- 
bidding the manufacture and sale of intoxicating liquors for any other 
except mechanical, medicinal, and manufacturing purposes. Those are 
the only exceptions. Various statutory laws have been enacted since 
then to carry into effect the constitutional requirement. 

Mr. Henry. That was the constitutional requirement? 

Mr. Scott. Yes. I received this morning, Mr. Chairman — 1 give 
this simply as an illustration of the very numerous letters I have 
received on this subject, and which prompt my appearance here— a 
letter from the president and the secretary of the State Temperance 
Union of Kansas, inclosing the following resolution: 

Resolved J That the Kansas State Temperance Union, in session assembled, respect- 
fully request our Senators and Representatives to support the Hepburn-Dolliver bill 
now pending before the Congress of the United States. 

The State Temperance Union, I may say, is a nonpolitical organi- 
zation, simply of the temperance workers. It is not regarded as a 
prohibition organization, either. It is an organization of temperance 
workers of the State and as an evidence that its membership is not 
composed exclusively of cranks on the temperance question and men 
who cut no figure in any other matter, 1 wish to call attention to the 
fact that the president who signs this is Mr. F. C. Coburn, whose 
work as the secretary of the State Board of Agriculture of Kansas 
has been recognized not only in our own country but in foreign coun- 
tries, and whose strength along that line has been recognized by his 
appointment as superintendent of the live-stock division of the 
Louisiana Purchase Exposition at St. Louis. 

I said that 1 would not present an extended argument in favor of 
this bill, but 1 can not forbear inquiring why the committee should 
not report the bill. I am sure that enough sentiment has been shown 
to indicate that the country understands that this bill is pending before 
this committee, that the people who believe in temperance, particularly 
those who believe in the prmciple of prohibition, think that it ought 



182 HEPBURN BILL. 

to become a law, and therefore it seems to me that the committee 
might well consider whether it would be justified in refusing to give 
the House of Representatives or the Senate an opportunity to discuss 
and pass judgment upon this bill. When it comes into the House it 
can be thrashed out,' and I take it that the committee will not refuse 
to allow the majority of this Congress to determine a question of such 
importance as this. 

And I wish to suggest also that this is not a question of prohibition, 
as has been suggested by the last two or three gentleman who have 
preceded me (the conclusions I have heard them state on the question); 
it is not a question of prohibition. As 1 understand the bill it will in 
no way affect the liquor traflSc in States where it is not now prohibited. 
I do not understand that it will interfere at all with the personal liberty 
of the gentleman who resides in Pennsylvania, or the gentleman wha 
lives in New York, or those living in any other State where a prohibi- 
tion law is not inforce. They will have the same rights, benefits, and 
privileges under this law that the}^ have under any existing law. 

All that this bill does, as I understand it, is simply to make any 
intoxicating liquor subject to the laws of the State into which it goea 
the moment it passes the borders of that State, and it seems to me there 
could be no objection to that. If we in Kansas choose to prohibit the 
sale and manufacture of intoxicating liquors, I ask with all deference, 
what business is it for the people in Pennsylvania or New York? 
That is our special concern. It seems to me that we have the right to 
insist that the people of other States shall obey the laws which we 
impose upon the people of our own State. 

Mr. GiLLETT, of California. May I ask you a question ? 

Mr. Scott. One moment, please; just allow me to finish this state- 
ment. It seems to me it is not a question of prohibition,^ but a 
question of comity between the Federal Government and the State 
Government. We do not allow our own people to manufacture and 
sell liquor. Why, therefore, should we let somebody come in from 
another State and sell liquor or manufacture it? 

Now, Mr. Gillett. 

Mr. Gillett, of California. Have not you already, under the police 
powers of your State, the right to absolutely prohibit the sale of liquor 
in your State, independent of this law ? 

Mr. Scott. As I understand it, the lack in the present law, which 
this bill seeks to remedy, is that under existing legislation the State 
laws can not touch any liquor that comes into the State until it has 
gotten into the hands of the consignee. 

Mr. Gillett, of California. Yes; that is right. 

Mr. Scott. As I understand this bill, it proposes to give our State 
the right to seize that liquor whenever it passes the border of the 
State, no matter whether it is in the hands of the consignee or not. 

Mr. Gillett, of California. How many States besides Kansas are 
there to-day in which there open saloons and liquor being sold over 
the bar? 

Mr. Scott. I would not confess that that had anything to do with 
this question. 

Mr. Gillett, of California. I would like to know as a matter of 
information. 

Mr. Scott. As a matter of information I am willing to say that all 



HEPBUEN BILL. 183 

the larger cities of Kansas, with the possible exception of Topeka, the 
State capital, have saloons more or less open. The law is very gener- 
ally enforced in the smaller towns of the State. It is very generally 
violated in the larger towns. 

Mr. GiLLETT, of California. It is not violated in the larger towns 
because the sentiment of the people is not in sympathy with it? 

Mr. Scott. Undoubtedly that is largely the reason for it. 

Mr. GiLLETT, of California. Would you want further legislation 
then to carry out your laws when you are unable to carry them out as 
they exist on the statute books? 

Mr. Scott. We insist that the Federal power ought to help us rather 
than to hinder us. 

Mr. GiLLETT, of California. It can not help you enforce the police 
powers. 

Mr. Scott. They can take the obstacles out of the way. 

Mr. GiLLETT, of California. Is this an obstacle in the way of open 
saloons in Kansas now ? 

Mr. Scott. Undoubtedly one of the obstacles in the way of the 
enforcement of the prohibitory law is the fact that brewers and dis- 
tillers from outside States can maintain a warehouse in there. 

Mr. Littlefield. A depot for delivery? 

Mr. Scott. A depot of supply. They have one in my town where 
they can send their liquors, and we can not touch those liquors until 
they get into the hands of the consignee. I maintain therefore that 
the Federal law as it now exists is an absolute obstacle to the enforce- 
ment of our own police regulations. 

Mr. Littlefield. That liquor can not be sold until it does get into 
the hands of the consignee, can it? 

Mr. Scott. It can not be delivered, but it is very much harder to 
trace it after it is delivered to the individual than it is to trace it to 
the point of release, where a cargo or two may be stored. 

Mr. Thomas. Is it not a fact that in Kansas intoxicating liquors are 
transported from other States through the express companies, and that 
they are stored in the express offices, and delivered from those offices 
to anyone who will come in and pay the freight and charges ? 

Mr. Scott. A very common practice has been to have packages con- 
taining liquor consigned to a certain individual. Then a day or two 
afterwards, or perhaps the same day, the express agent will receive a 
letter saying that a package consigned to John Smith will not be called 
for by him, but may be delivered to anyone who will pay the charge. 

There has been a great deal of that kind of work done; so much so, 
in fact, that in a great many cases in Kansas express agents have been 
arrested under the Sta,te law for the sale of intoxicating liquors, 
charged with the sale of intoxicating liquors, and the express agents, 
those who do not like to handle this sort of business, are very greatly 
annoyed by it and are put to expense and to shame on account of the 
manner in which the business is handled by those outside the State. 

I am taking more time than I feel lam warranted in doin^, because 
I did not come here especially to make this argument; but in conclu- 
sion I simply wish to emphasize what I have already said, that the 
S5ople of Kansas undoubtedly have a right to the aid of the Federal 
overnment rather than its opposition. They have a right to enact 
such laws as to them seem good, and the House of Representatives 



184 HEPBUEN BILL 

has a right, in view of the widespread popular interest in this measure, 
to have it brought before them in order that they may give it the 
consideration to which its vast importance entitles it. 

I thank you very much. 

Mr. Henry. I would like to ask you another question. Does the 
United States issue internal-revenue license to any of these saloon 
keepers in Kiinsas? 

Mr. Scott. 'Oh, yes; the saloon keepers in Kansas are very particu- 
lar to secure a United States revenue license before engaging m busi- 
ness; and in that connection I wish to say that if I could control the 
legislation of this House I would not only report this bill, but I would 
report another bill by which I would endeavor to prevent the sale of 
United States revenue license to a man who intended to engage in the 
liquor business in the States where it was prohibited. Of course I 
understand that is another question. 

Mr. Henry. 1 think you are laboring under a slight misapprehen- 
sion. The United States does not issue a license and never did; sim- 
ply a receipt for the payment of the tax. 

Mr. Scott. I understand that perfectly well. We use that for 
convenience. 

Mr. LiTTLEFiELD. There is an express provision in the statute of 
the United States that it shall not be used directly or indirectly to 
authorize a sale, and, more than that, it could not. 

Mr. Henry. But it makes it permissible 

Mr. Scott. It makes it permissible. 

Mr. Henry. I do not understand that it has any local effect on its 
consideration whatever. 

Mr. Scott. And if you will pardon me, if a man who engaged in 
the liquor business in Kansas was not allowed to pay the tax levied 
upon a retail dealer he would not receive the receipt for that tax, and 
in the absence of the receipt for that tax he could be prosecuted under 
the Federal statutes, and we would therefore have the aid of the Fed- 
eral laws instead of the opposition. I understand that is entirely aside 
from the purpose of this bill, and I will not take up the time of the 
committee to discuss it. 

Mr. Henry. But you were speaking of the impediments that the 
United States put in the way of the enforcement of your law, and I 
think it is very pertinent here to inquire about this. 

Mr. Brantley. Is it not true that if he does not pay the United 
States tax that he has two penalties to meet — one from the Federal 
Government and one from the State government? 

Mr. Scott. That is the point exacthr. 

Mr. Brantley. And if he pays the United States Government, have 
you not an additional way of getting at who is violating the State law ? 

Mr. Scott. Our law provides that the possession of the United 
States revenue receipt shall be regarded as prima facie evidence of 
intention to violate the law. 

Mr. Henry. You are helped in that way to enforce your State laws. 

Mr. Scott. I am very much obliged to you. 

Mr. DiNwiDDiE. What is the pleasure of the committee this morn- 
ing? Does the committee desire to take a recess at half -past twelve? 

The Chairman. Yes, sir. 

Mr. Bartholdt. I would like to have five minutes for Dr. Mary 
Walker. 



HEPBDBN BILL. 185 

STATEMENT OF D£. MABT WALKEB. 

Dr. Walker. Mr. Chairman and gentlemen of the committee, they 
have had a kind of Methodist convention before they went on to say 
what they desired to say. As a woman I must follow in the track of 
m}'^ betters, the men. 

Now, I am a total abstainer. I have been all my life. I have been 
a temperance advocate; I have written temperance articles; I believe 
in total abstinence. I wish that everything that can intoxicate could 
be, by some miracle, thrown right out of existence, so that no one 
could become intoxicated, so that no one could use any sort of wines, 
liquors, or beers. But it seems to me, Mr. Chairman, that there is 
only one question before your committee, and that is, if you under- 
take to pass such a law, can you enforce it? 

Now, Mr. Chairman, every law is weak, every law is ineflScient 
when there is not a public sentiment to enforce it, and when it is 
impossible to have oflScials, a sufficient number over the United States, 
to enforce such a law. Now, I make this one point. I hope you 
gentlemen will not pass a law that every intelligent man on this com- 
mittee knows can not be enfoi'ced. 

Mr. DiNwiDDiE. Mr. Chairman and gentlemen of the committee, 1 
will have an opportunity to review and sum up at the conclusion of 
the hearings, out just now after the remarks of Representative Scott 
and the questions that have been raised in connection with the matter 
of interference by outside parties with the Droper enforcement of the 
proper police regulations of the States, ana to show some reason why 
this legislation is necessary and desired, I want to call attention at 
this particular time to a circular which I have in my hand, which pos- 
sibly better than any words of mine or anybody else can illustrate 
what we are attempting to overcome. I hold in my hand — and 1 very 
much regret that Mr. Shirley, of Louisville, is not here, in view of 
his representations to the committee yesterday — a circular issued last 
November by Crigler & Crigler, of Covington, together with accom- 
panying matter that was sent out to express agents throughout the 
country, relative to their taking the agencv for the whiskys distilled 
by this firm. The letter will speak for itself. 

(Established 1871. Crigler & Crigler, distillers. Woodland sour mash whisky.) 

Covington, Ky., November 5, 190S. 
Express Agent. 

Dear Sir: The holiday season and the few weeks preceding offer an excellent 
opportunity for the sale of Woodland whisky. This year we are making a special 
enort to assist our representatives to secure orders by ^ving away free to all custom- 
ers our holiday book novelty, which contains a half pint of Col. R. L. Crigler' s pri- 
vate stock whisky, twenty years old. As per inclosed circular this novelty will be 
placed in every package of four quarts or more shipped before January 1. 

Special holiday offer; $95 commissions paid on 100 gallons sold as follows: 

Regular commission $50 

Special commission 15 

Suit clothes, valued at 30 

Total of 95 

We will also make this unprecedented offer. To any express agent who sends in 
orders between November 10 and January 1, amounting in all to 100, gallons, we 
will give an extra bonus of $15 in addition to the regular commission of $50, also an 



186 HEPBURN BILL. 

elegant suit of all-wool clothes, made to order, valued at $30, making a total of $95- 
you will receive for sale of 100 gallons — ^a commission equaling 95 cents per gallon. 
The book novelty which we offer as an extra inducement to customers will be of 
great assistance in making sales. Your position as express agent puts you in touch 
with those who use good whisky and send away from home for it, therefore, you 
should be better able with a smaller amount of effort to secure orders than anyone 
else. Knowing you to be reliable we will extend you credit and charge to your 
account any orders you may wish, or will ship anyone whose account you may 
guarantee. 

We inclose circular of our Christmas Club offer whereby we ship 5 gallons of 
Woodland for the price of 4, on condition that cash accompanies the order. Your 
commission on this shipment will be $2, and each one will credit you 4 gallon& 
toward a 100-gallon sale. 

In order to save express charges, with the first shipment of 4 quarts or more going: 
to your town, upon receipt of the inclosed card we will send you for sample purposes, 
absolutely free, 1 full quart of 12-year-old Woodland. 

Orders are best secured by personal solicitation, but if you will give us the names 
of whisky users in your locality (omitting merchants) we will solicit their holiday 
order and send them circulars of the Book Novelty. Any orders received will be 
placed to your credit. 

Circulars descriptive of the Book Novelty and other stationery needed will be 
mailed you promptly on request. 

Hoping to receive an early reply and trusting you will take advantage of our lib- 
eral offer, we are, 

Very respectfully, Crigler & Crigler. 

GET UP A CLUB AND SECURE FOUR QUARTS WOODLAND FREE. 

To anyone who will get up an order amon^ their friends for four gallons (16 
quarts) and send us fifteen dollars ($15) cash with the order, we will give them free, 
besides the 16 quarts, tour quarts extra, making a shipment of five gallons (20 
quarts) for the cost of four gallons, shipped by express, all charges prepaid, in one 
large box free from marks to indicate contents.' The box will include the assortment 
here illustrated. 

For $15 cash with order. 

Holiday club offer will be sent to anyone before Jan. 1, who sends the amount 
$15 with the order, and consists as follows: 15 full quarts 12-year-old Woodland 
whisky; 5 full quarts old private stock, twenty years old; 5 book novelties, each 
containing one-half pint old private stock; 5 whisky glasses and 5 corkscrews. The 
club order complete contains five gallons of whisky besides the five half pints private 
stock whisky. 

For $15 cash with order. 

Use order blank on other side and give names of those who will secure part of the 
shipment. This club offer, which expires January 1, will not be sent C. O. D., but 
only to those who send cash with the order. This price is net; no discounts or 
deductions whatever from this price. 

Crigler & Crigler, 

DisHllerSj Covingtoriy Ky. 

SPECIAL OFFER. 

To any representative sending us orders between November 10 and January 1 
amounting in all to 100 gallons we will give — 

Per gallon. 

Regular commission $0. 50 

Special holiday commission 15 

Elegant suit of clothes 30 

A total commission of 95 

Equivalent to $95 for 100 gallons. 

The suit of clothes is of all-wool material and made to order by H. Eilerman & 
Sons, the largest merchant tailors in Covington, with whom we have a special yearly 
contract to supply us with the best they can make. They will send you measure- 
ment blanks with full instructions, and as many samples as desired to select from. 
A perfect fit is guaranteed. We can refer to agents who have secured suits, and they 
will gladly tell you of their high quality and nt. 



HEPBURN BILL. 18T 

This is the most remarkable offer we have ever made to further the sale of Wood- 
land, but it is our desire to have representatives make all the money they can during^ 
that period of the year when everyone will use more or less whisky. As an extra 
inducement between November 10 and January 1, we will give each customer gratis 
with every shipment of four quarts or more our book novelty, which contains one- 
half pint Col. R. L. Crigler's old private stock whisky, twenty years old. 

Our regular commission is 50 cents ^er gallon, and the 15 cents addition and suit 
of clothes are only given on the following conditions: 

1. That orders tor 100 gallons must be sent in between November 10, and January 1. 

2. This extra commission will only be paid to those whose orders amount to 100 
gallons durinff this time. On less quantities only the regular commission of 50 cents 
per gallon will be allowed as well as premiums from list A as heretofore. 

3. This offer holds good only to January 1, and no longer. 

Crigler & Crigler, 
Distillers Woodland Whisky^ Covington^ Ky. 

Free, our holiday novelty free! With every case of Woodland, shipped before 
January 1. 

This novelty book will be placed in every case of Woodland whisky consisting of 
four quarts or more shipped before January 1. The novelty is in exact imitation of 
a real book, made of heavy cardboard, bound in cloth, with title, etc., lettered in 
gold, and will deceive the most observing. Upon opening the book you find, instead 
of dull reading matter, a very active half pint of^ Col. R. L. Crigler' s Old Private 
Stock Whisky 20 years old, labeled in appropriate holiday style. This book and 
bottle of whiskey will itself make an elegant Christmas present and a great deal of 
sport may be had with it during the holidays. 

Price list of Woodland whisky, 12 years old, by express, all charges prepaid: 

Fourfull quarts, $3.85; 6 full quarts, $5.75; 8 full quarts, $7.65; 12 full quarts, $11.50. 
Shipped C. O. D. where express companies will deliver that way. Three per cent off 
these prices for cash with order. 

May I ask that 1 have the opportunity to insert this as a part of the 
record? 

The Chairman. You may have that privilegre. 

Mr. DiNwiDDiE. Mr. Chairman and gentlemen, I desire to intro- 
duce Mr. William C. Lilley, of Pittsburg, the chairman of the per- 
manent committee on temperance of the Presbyterian Church of 
America. 

STATEMENT OF ME. WILLIAM C. LILLEY, OF PITTSBUEO, PA. 

Mr. Lilley. Mr. Chairman and gentlemen of the committee, I am 
a business man. My name is Lilley, William C, and I live in Pitts- 
burg. The Presbyterian Church in the United States is a delegated 
body. It convened last year in the city of Los Angeles, Cal., and it 
had 680 delegates, equally divided between ministers and laymen. 
These laymen are ruling elders; that is their official title. Thus com- 
posed, it is, under our church government, the highest court of our 
church and the appointing power in the body. 

The unit of this general assembly is the individual church whose 
pastor and one layman (or elder) represent it in a lower court called 
the presbytery. For every 24 ministers enrolled in the presbytery, 
two men, one a minister, and the other a layman (or elder), by a vote^ 
of the presbytery are entitled to a seat in the assembly. 

But the conduct of the business and the various interests aflfecting 
the church may be properly cared for: there are ten permanent boards 
and committees created by the assembly, giving each a specific duty to 
perform, and in the interim of the meetings they are to speak for the 
whole church on the matters relating to their several departments. 
One of these agencies is known as the general assembly's permanent 



188 HEPBUEN BILL. 

committee on temperance. It is composed of 12 members, 6 of whom 
are ministers and 6 elders. 

They are charged with the duty of ascertaining the mind of the 
church on all matters relating to the question of temperance. They 
do this in two ways. First. By placing a man in each Presbytery 
charged with the specific duty of ascertaining the minds of each church 
in- the presbytery; he is known as the chairman of the standing com- 
mittee of the presbytery. Second. Each individual church is covered 
by a body of elders who with the pastor is called the session of that 
church, and one of their number is designated as the chairman of the 
committee on temperance in that church. This chairman in the indi- 
vidual church reports to the chairman of the presbytery. The chair- 
man of the presbytery reports to the general assembly's permanent 
committee on temperance. 

At the annual meeting of the assembly held in Los Angeles last May 
the communicant menibership of the Presbyterian Church in the 
United States was 1,067,477. Of this number 22,345 were officials 
known as elders, and in addition to that, 7,705 were ministers of the 
gospel under commission by this assembly. In addition to these per- 
sons organically connected with the Presbyterian Church of the 
United States is a Sabbath-school membership of 1,076,477, of whom 
at least one-half, or in round numbers 500,000, are children not in 
communicant membership, but for whose spiritu&l oversight and 
moral conduct the Presbyterian Church is responsible, making a total 
in round numbers of 1,700,000. 

Now, Mr. Chairman, 1 have taken your time reciting these facts 
relative to the membership and the form of government of the Pres- 
byterian Church that you may know somewhat of the constituency 
that 1 have the honor to represent before you this morning, and how 
I have derived my authority as a member of the general assembly's 
permanent committee on temperance, of which I have the additional 
nonor of being chairman, to speak for these 1,700,000 souls. 

In response to the direction of the committee, and on behalf of a 
large number of the chairmen of standing committees in the presbytery, 
1 have come to pray for speedy passage of this bill. I shall not take 
up your time in arguing the question in its legal, moral, or economi- 
cal phases, further than to say that I am in full accord with all that 
has been placed before you along these lines by the friends who seek 
the passage of the bill, and to call your attention to sides of this 
question that affect the large constituency that I am here to speak for. 

I am here, sir, this morning under the shadow of a great sorrow. 
Thirty-five years ago in a small town in a small church in western 
Pennsylvania six young men banded together to do Christian work. 
Two of them went into mercantile life, two of them went into manu- 
facturing life, one went into the ministry, and one went into the prac- 
tice of law. Yesterday in the city of Philadelphia I helped to lay away 
the preacher, having traveled 400 miles to perform that service, and, 
sir, I stand before you this morning the last oi those six men. The mor- 
tuary record of the city of Philadelphia shows that that preacher died 
from pneumonia, and I take it that is true, but 1 want to say to you, 
sir, that he died of a broken heart; that was the real cause of the man's 
death, a broken heart. 

One week ago to-day that beloved minister of the gospel was called 
upon to part with his brother, his only brother, and the record in his 



HEPBUBN BILL. 189 

case shows that he died of brain fever. Mr. Chairman, I know that 
man died of maniaapotu, and, sir, the liquor that brought about that 
death was bought in a town where, had this bill been in effect, it could 
not have been purchased. I am here to-day to plead for two widows 
and for six fatnerless children made so in four days from each other 
by this awful traffic. 1 come, sir, to plead the cause not only of those 
who still live and of the families represented by the Presbyterian 
church, but in the name of the dead 1 ask for the passage of this bill. 

1 am a business man, Mr. Chairman. For twenty-five years 1 have 
been engaged in the manufacturing business, and 1 had as an associate a 
man whom you call ''one of the boys." Until the day of his death he 
had one redeeming trait. He loved his mother. Almost every Sab- 
bath day he took his dinner with his mother. One day he went as 
usual to his mother's dinner, and during the course of the conversa- 
tion his mother said to him, ''John, 1 see Mr. Lilley has an article in 
the paper this week on the temperance question," and he straightened 
himself up in a comical way — I can see him now, and he can do it very 
effectively — and he said, '" What does he know about the temperance 
question? I will bet he was never drunk in his life, mother. If that 
was me, I could give him some pointers." "Yes, John, you could, 
you could; you have given me many a heartache, and you have cost 
me a great deal of money." 

Mr. Chairman, the 1,700,000 people that I represent here this morn- 
ing represent heartaches, and wnether we will or not, we have to help 
pay the bill. 

1 do not believe that the passage of this bill will whollv remedy 
these matters. I do believe that a measure of relief will follow in the 
wake of its passage. Therefore, in the name of the Presbyterian 
Church in the United States of America, representing more than 
1,700,000 people, I have come at this time to pray that you recommend 
this bill for a speedy passage. 

Mr. Chairman, 1 greatly appreciate the opportunity that you have 
given me to present the claims of my constituency, and I have sought 
to take as little of your time as was consistent with the importance of 
the case that I believe to be before you. 

Mr. DiNWiDDiE. I should like to introduce Rev. Dr. C. F. Win- 
bigler. 

STATEMENT OF £EV. C. F. WINBIOLEB. 

Mr. WiNBiGLER. Mr. Chairman, I feel somewhat of a hesitancy to 
stand before you and talk on this question, for several reasons; not 
because I am not in sympathy with it; not because 1 do not believe 
that the law should be enacted and carried into effect; not because I do 
not believe it is a just provision; but when I was considering this 
matter this morning, 1 said to myself what reason could be urged for 
the nonpassage of tnis bill, what legitimate, legal, righteous reason 
could be filed against the passage of this bill? I have been reading 
some of our church papers recently. If you know anything about the 
constituency of the Baptist denomination, you know that each church 
is independent of every other church. We are congregational in the 
form of government, but yet the consensus of conviction of the Bap- 
tist denomination is usually published in the Baptist papers through- 
out the country, and is voiced in the Baptist associations and in the 
large meetings, as we call them — the May meetings. 



190 HEPBUEN BILL. 

I am very sure that the Baptist denomination is right on this ques- 
tion and is in sympathy with the inauguration of a law of this kind to 
protect the people in States where they have prohibition and to prevent 
the encroachment upon that law and prevent the violation of that law. 
In our associations there have been expressions made concerning 
this and similar matters, and pur people are very definite on the matter 
of the liquor traflSc as a general thing, and they are very specific on 
this special thing. 

1 had a thougnt like this when I was coming up here, and since I 
have heard this speaker I have been surprised at a paper of this kind 
(referring to the printed letter of a liquor firm read aloud by Mr. Din- 
widdie) being sent to prohibition States and to men who are oflScering 
express companies, that they should be solicited to become agents, and 
practically to violate the law and to make it ineffective in those States. 

And yet, I have realized, too, that if there could be any statement 
made as to why such a thing as this should not become a law and 
should not become operative in prohibition States, that there must be 
a reason back of it, and the only reason that 1 can see and infer is 
that it means simply a violation of the law that has been passed in that 
State. 

You heard what the gentleman who spoke to you about the Presby- 
terian body said. 1 can sav practically the same thing in regard to 
the Baptist denomination, although we are not governed, as you know, 
as they are, and possibly we can not get the concensus of conviction 
us they have gotten the concensus of conviction in that body; but I 
believe that if the voice of the Baptist people of the United States 
<30uld be gathered and could be uttered here today it would say unani- 
mously, let this provision become a law, so that the people in the 
respective States shall not be interfered with in the enforcement of 
their laws. One thing struck me 

Mr. LiTTLEFiELD. Your denomination is one of the largest in the 
country, is it not? 

Mr. WiNBiGLER. Yes, sir. 

Mr. LiTTLEFiELD. The second or third after the Catholic Church, 
I think. 

Mr. WiNBiGLER. Yes, sir. 

I remember also this morning of reading a little pamphlet I received 
in which there was some discussion on the floor of the House of Rep- 
resentatives concerning what is termed the C. O. D. provision. Of 
course that means to collect on delivery, but I did not know but what 
it might mean something else; that it might have an application, for 
instance, to a violation of the law; that it might refer particularly to 
men who do not care anything at all about the Christian and the tem- 
perance sentiment of the country, and especially in the States where 
prohibition has become an actual fact and an actual law. 

1 have been surprised at what has been said here this morning by a 
gentlemen who was speaking when 1 came in; how, in Kansas, this law 
has been violated. It has been an eye opener to me. In fact, if you 
will allow me to speak frankly and plainly, as is ^ny custom to do, I 
can not see an}^ reason for the opposition of this provision to making 
it a law, unless there is a purpose in the hands or the men that have 
been carrying on the liquor traffic in the country to violate the law 
that is passed in the States that have prohibition. If I were to make 
an inference, I would simply make a larger application of it and say 



HEPBURN BILL. 191 

that it is in line with the whole business. It is a lawbreaker, inimical 
to the best interests of the country and runs in direct opposition to 
legitimate business of the country. The same old story of the past is 
told in the opposition of the provision. 

I want to say not only that the Baptists are in favor of the passage 
of this bill, but in favor of any provision that may enforce tne pro- 
hibition law of the respective States, but we think that the moral sen- 
timent of the country will also be helped in this respect. 

There has been an idea going abroad that in Iowa and Kansas, and in 
Maine, and even in counties that have prohibition, that the law is con- 
tinually being violated. But let me say that the law has been violated, 
I think, because men have been ever ready to put their agencies into 
those places and have Violated the law in opposition to the law that has 
been passed and recorded on the statute books of those States. It is 
not because the people are violating the law; it is not because there is 
such a wonderful demand for those things, but it is because this matter 
has been clandestinely carried on, and clandestinely permitted, and 
clandestinely pushed in the face of the people that have been drinkers, 
and thus the law has been violated by virtue of the initiative on the 
part of these persons and these representatives. 

And let me say again that I think it is no more than right that the 
States that have prohibition should have Federal cooperation and 
sympathy, and at the same time have fortification and help. The 
tfnited States, of course, is not, I understand, in partnership with this 
traflBc. I understand something about the license, what is termed the 
^25 license fee, that it does not give a license to sell liquor, and so on. 
But manv men understand that it does. But if the United States will 
put itseli on record by law, and by such an enactment as this, they 
will wash their hands from the stigma and the thought that they 
encourage this business; it will settle it and enable the States to carry 
out their laws. I hope this will be carried, and I am sure if the 
Baptist denomination of the United States could speak for itself this 
morning, and if I could voice the sentiment of the denominations, that 
they would say aye to this provision. 

Mr. Baetholdt. I would like to introduce Mr. Obermann. 

STATEMENT OF ME. 0. J. OSEEMANN, OF SALTIMOEE, MD. 

Mr. DiNWiDDiE. Whom do you represent? 

Mr. Obermann. I represent myseli, and talk for the brewers. 

Mr. DiNwiDDiE. I would be glad to have the gentleman state that. 

Mr. Obermann. Certainly. At the outset, I am requested by Mr. 
Dinwiddle to confess to the fact that I am a brewer, and I therefore 
make that statement. I am quite sure 1 will be borne out when I say 
that this is the first time before a committee of Congress or anywhere 
in a public meeting that a brewer has for himself answered the prohi- 
bitionists. 

We have been quiet; we have been long suffering, full}^ confident, 
and in full knowledge of the fact that we have been maligned and our 
product has not been understood. We have been assailed by meddlers; 
we have been assailed by impractical men, not in touch with their fel- 
low-men, and who do not know and do not seem to understand that 
we, the brewers (and at the statement I am about to make I expect 
our friends on the right to smile), are a greater temperance factor 



192 HEPBURN BILL. 

than they will ever become. It is an acknowledged fact that as fast 
as the consumption of malt liquor increases the consumption of spirit- 
uous liquor decreases. I had not expected to say a word, Mr. Chair- 
man, and I say what I do without any conference whatever with the 
few gentlemen who are my colleagues who are here to-day, and I fear 
that they will resent it that I speak at all; l^ut the last gentleman who 
spoke prompts me to sav a word or two. I will not make a speech; I 
never made one in my life; but I really begin to think it is easy. 

Mr. Palmer. You are doing pretty well; go on. 

Mr. Obermann. It is probably a little bold on my part, and it is 
unusual, as I stated before, to have a brewer address you, but the moose 
is as glad to see you as you are to see the moose. I would tell you 
the story, but I understand that the story has been appropriated by 
the distinguished gentleman from Maine. 

Mr. LiTTLEFiELD. Yes, that is my story, and it is quite a good 
storv. 

Mr. Obermann. Very good indeed, sir. 

You are asked, gentlemen; the Congress of the United States is 
asked, by these gentlemen who have come here, to help them. They 
say practically, "Help me, Cassius, or I sink." The seed of prohibi- 
tion has everywhere fallen on barren soil. 

That has been so since the garden of Eden, and will continue so 
until the end of the world. You can not by legislation bring people to 
morality. That must be taught. Gentlemen, I am a temperate man. 
I believe in temperance. I have attended temperance lectures, and I 
honor every man and woman really sincere in his or her belief that 
there should be no intoxicating liquors sold or used, if they really 
believe that it results in the dire calamities they claim. But human 
nature is the same everywhere, and will assert itself in spite of imprac- 
ticable restraints. Ri^ht over here in Virginia, after a long march, 
perhaps on a winter night, I have stood in line until my toes were 
nearly frozen, because that precious stuflf whisky (precious because 
forbidden) was to be doled out to us. 

And I assure you I wouldn't walk to the end of the table for the 
best drink of whisky anyone could oflFer me, because I have no desire 
for whisky. I was in Portland, Me., not long ago, and some one said 
to me, ''Come here and I will show you where you can get a drink." 
I did not want a drink, although perhaps I looked as if I wanted one. 
It is against the law there, and so perhaps a lot of people drink who 
would not do so otherwise. I point to my native city of Milwaukee as 
a model city. There are fewer arrests there for drunkenness and dis- 
orderly conduct than in Portland. Portland is about one-third the 
size of Milwaukee. I can not prove that, but those are the statistics 
I have read, and the}'^ are very likely true. 

Mr. Littlefield. I have been in both, and I might not agree with 
you. Still, that does not disturb me. 

Mr. Obermann. The good people of the East who come to Milwaukee 
might perhaps hold up their nands in holy horror at the sinfulness of 
the city, and if they lived there a little while they would find that we 
have an orderly, law-abiding city, full of as good men and women as 
any city in the land holds, and that we are not going to the devil on a 
greased plane because we take a glass of beer when we want it. The 
great philosopher, Shakespeare, said to the world hundreds of years 
ago, "Dost thou think, because thou art virtuous, there shall be no 



HEPBURN BILL. 193 

more cakes and ale?" Why, Mr. Littlefield, because there is a man 
up and down this long Pennsylvania avenue who may get drunk, is it 
right to forbid you and me from partaking of a glass of wine at dinner? 
It is ridiculous. 

Perhaps what I say here does not enter into the question before 
you, but I have listened to more temperance and prohibition speeches 
for the last two days than I ever listened to before and I thought that 
possibly my colleagues and the committee would indulge me for just 
a moment. If the statements we have heard here could be verified, 
half the breweries would be closed up; aye, the brewers would close 
their establishments themselves, because they are good men and good 
citizens, and would not want to be in any such business. If you 
believe the advertisements we read nowadays of Postum cereal conee, 
it would be the duty of Congress to prohibit the importation of coffee, 
if you should reason along the lines that our friends here, by their 
camp-meeting methods, are trying to make you reason. 

According to these advertisements, coffee is a terrible poison. Lots 
of people believe it. Joseph Jefferson said to me not long ago: "I 
congratulate you; I understand your wife has given up coffee. I con- 
gratulate you upon her emancipation." He believed that. People 
get filled up with that sort of an idea, and their mission then is to 
become their neighbor's keeper. I will not let them be mine. Do you 
want them to be yours? 

Maine, New Hampshire, Vermont, Iowa, Kansas, and one or two 
other Western States have passed prohibition legislation. New Hamp- 
shire and Vermont, I believe, have reformed. Iowa has its breweries. 
New Hampshire has her breweries at Portsmouth, and large ones, and 
good ones too, the entire time it was a prohibition State. You would, 
therefore, have had New Hampshire, with its breweries included, had 
the State not come to its senses, with Iowa and its breweries and 
Kansas with its wide-open saloons, saying to you, saying to Congress, 
in effect, ''We are permitting breweries and saloons m our States; 
the people seem to want them; they are patronizing them." 

Public sentiment in those States seems to prevent us from enforcing 
the law, and now we ask Congress to legislate for us, to take these 
special States under its wing and forbid the brewers from other States 
from selling any of our inhabitants any of their product. 

I was in Des Moines, Iowa, about ten years ago, and I found in Des 
Moines 140 drug stores, and because the legislature in its wisdpm did 
concede the fact that there were times when this terrible stuff, wine 
and whisky, might have to be prescribed by physicians, that there are 
times when it must be used to save men's lives. I believe the lamented 
Grarfield was fed on wine a little while and his life prolonged thereby. 
And so they permitted drug stores to sell whisky when I was there. 

I don't know whether I looked tough or not, but several told me, 
''If you want a drink, I know where you can get it," and to study the 
question I went the rounds. Des Moines had, I believe, a population 
of about 20,000, and it would have been amply provided witn about 
20 drug stores, and there were about 140. Most of them had dummy 
bottles arranged along the shelves and the prescription counter was 
the bar. They did a thriving business. Why? Because they had 
prohibited something there, and the people were bound to get it. The 
old story of forbidden fruit. 

A man will take a bottle of whisky when he goes fishing because 

H B— 04 13 



194 HEPBURN BILL, 

there would be no place to get it if he wanted it while on his trip, 
and the chances are he would not take a drink, and yet if he did not 
have any and could not get any, he might want it. 

These prohibition laws create hypocrites and make lawbreakers, and 
they will continue to do so, and you can not by law eliminate it; and 
you are not supposed to go into partnership with these people who 
are attempting the impossible. That is my theory. 

Now, in addition, after you have got the State filled up with law- 
breakers and sneaks, you will make a lot of blackmailers; that is what 
you will do — ^always remember that. We can not put a keg of beer 
into a cracker box, or into such a package as was shown here. We 
have to sell our product in the open. So, as a matter of fact, the thing 
you people ought to favor is the very thing you are trying to prohibit. 
You are trying to prohibit the use absolutely of what the late Senator 
Sherman, on the floor of the Senate, pronounced a wholesome and 
pleasant beverage. The other will come in anyway. 

The United States Government could prohibit the sale of liquor. 
All it need do is to refuse the wholesale and retail license it issues, 
and one United States marshal could do what my friends here admit 
the whole State full of oflBcers can not accomplish. But Kansas winks 
at it. Kansas wants it. There are a few who do not. There are 
others who say never mind the saloon, we can get all we want to drink, 
we are our brothers' keepers. Public sentiment is against them and so 
they come here and say " Help us." '' Enact a law that will not apply 
to the country, but to a few States in which we are interested." If 
they think they can carry out their peculiar views, if they can say to 
me as a temperate man: "We know a man who drinks too much, we 
know a father whose son drinks too much, and therefore you must not 
touch it," if that idea can ever be carried out — and I know it can not — 
but if it could be done at all, the only way to do it is by education. 
Henry Ward Beecher said: "If you tell me I ought not to drink, I 
may agree with you" — and I heard that sermon — "if you tell me I 
ought not to drink, I may agree with you; but if you tell me I must 
not drink, I will drink because it is my natural right." I have always 
thought that Henry Ward Beecher and Robert IngersoU were good 
Christians. They were in touch with their fellow-men and were filled 
with human sympathy and genuine Christian charity. 

The brewer of America is a temperate man, a good citizen, an enter- 
prising man . The German brewer is a moderate and temperate drinker. 
He probably likes his glass of beer, and so gives evidence that he takes 
his own medicine. Pasteur, the great French scientist, after the French 
and German war, devoted years to investigating the manner in which 
the French people lived, and the result of his research is published and 
is on file in the Agricultural Department. He concludes that if his 
countrymen, instead of being absinthe drinkers and consumers of cheap 
wines, had been in the habit of drinking malt liquors, they might have 
been in a position to cope with the sturdy Germans. You ought not 
to sit here, gentlemen, and legislate against an article like that. Beer 
promotes temperance, and when drunk in moderation it is not as harm- 
ful as tea or coflfee. Questions were asked here yesterday about the 
quantity of alcohol in beer. 

Have any or you an idea that we put alcohol into our beer? We do 
not, any more than you, madam, put it into bread. Bread contains 
alcohol. The alpohol comes from fermentation. We take the extract 



HEPBURN BILL. 195 

from malt, and probably some unmalted grain tx) make the beer light 
in weight and color, as most men and women like it better that way. 
Since the American men and women have commenced to drink it the 
business of the brewer has increased, and if the nervous and high- 
strmig American women, and for that matter, the men, too, would 
drink this beverage it would benefit them. The phlegmatic German 
does not need it, but he likes it and he is entitled to it. Now, the very 
small percentage of alcohol in beer, about three per cent, is not enough 
to hurt, if drunk in moderation. Imagine any man or woman here 
drinking enough of that which is really ninety-seven per cent food, to 
injure tne drinker. It is really an extract of malt and hops, and per- 
haps rice or corn (and when we use corn we use better com than that 
you get on your tables). Let some one contradict that. We use corn 
better prepared. 

Every bit of fusel oil is extracted — we could not brew with it if it 
was there. We extract the strength of that, and then what do we do? 
The first thing we know, gentlemen, I will teach you brewing busi- 
ness. We add some hops to take away the sweet taste, because if you 
have any trouble with your stomach the physician will not prescribe 
anything sweet. That gives it keeping quality. And then you have 
this awful stuflf. These charges that you hear about adulteration of 
beer are so ridiculous, so assinine, when I tell you that the necessary 
ingredients to make good beer cost less than the adulterations we are 
charged with using. So that you can see how foolish these charges 
are. In the process of fermentation a little alcohol forms, that is all 
there is to it. When you see a drunken man on the street, you know 
that he has not been drinking beer, but in the vile stuflF sold in prohi- 
bition States there lurks danger and death. And strange to say you 
see more drunkenness in prohibition States than anywhere else. Have 
you ever left Boston at night and seen the drunken crowd going out 
into suburban towns, Brockton and those places around there? 

Mr. LiTTLEFiELD. I ncvcr have. I have left there a good many 
times at night, but I have never seen it. I went with a crowd on the 
transportation train, too, 

Mr. Obermann. Well, I have. Why is that? Simply human 
nature. Don't you fight it, because you will be beaten in the end as 
sure as God made little apples. And no legislation here will help you. 
Why is that? Because in their towns it has been forbidden them. 
They can not get it, but they want it; so they go to Boston and go to 
excess. You need not tell a girl in a candy store, "Don't eat too 
much candy." She won't, and can have all she wants, too. Let me 
illustrate this by coming nearer home and showing you how I feel and 
why I feel thus. 

My wife is a Massachusetts lady of Puritan stock; an American lady. 
I am of German parents. When I went to Milwaukee to go into the 
brewing business, she said: ''You are not going to put your little 
boys into the brewing business; you are not going to ruin them." 
"•Well," I said, ''my father called me there; I have been trained to 
obey. I have always been a good boy and obeyed my father, and I 
will obey now, but I promise you this, my dear, if you will leave the 
matter in my hands, at the slightest evidence of the boys being hurt 
I will retire from the brewing business, no matter at what cost." And 
I will tell you the course I pursued with them. I have kept them 
from wanting to drink because I did not prohibit it. If I had a bottle 



196 HEPBUBN BILL. 

of wine or beer on my table, when the boys got to be about sixteen, 
I would say to them: "Do you want a little wine; do you want a little 
beer?" 

"No." I have it in my cellar and on my sideboard, and I will take 
an oath here that I have never known one of my boys to go to my 
sideboard for a drink of liquor, and I am sure I vrould have made 
drunkards of them if 1 had said: "No, no, this is for your father, 
you can not have any." What is the result of such a case? The 
moment they are out of your control they jump over the traces. 
That is where you get your drunkards. My course was to make 
them free moral agents. I trained them myself. I didn't call in the 
service of the police. I didn't make forbidden fruit of an article that, 
taken temperately and moderately, can harm no one. I have known 
men in the Army who have taken Jamaica ginger and that sort of 
stuflF until it almost ate their insides out, because they could not get 
whisky. And so I say it is wrong; it is impracticable. 

Gentlemen, I thank you. 

(Thereupon at 12.30 the committee took a recess until 2:30 o'clock.) 

AFTERNOON SESSION. 

The committee reassembled pursuant to the taking of recess, Hon. 
John J. Jenkins in the chair. 

STATEMENT OF HON. CHABLES a. TIBEELL. A BEPBESENTATIVE 
IN GONGEESS FEOM THE STATE OF MASSACHUSETTS. 

Mr. TiRRELL. One of my colleagues from Massachusetts yesterday 
afternoon addressed the committee upon this bill. I was unable to be 
present, but fi*om the report which appeared in the daily papers I 
judge that he took the same line of argument which the Congressman 
from Kentucky had previously taken at the same hearing, namely, 
speaking upon the constitutional features of the bill. 

But inasmuch as he appeared as a representative of Massachusetts, 
and in the course of his argument may, perhaps unintentionally, have 
endeavored to impress upon the committee that the sentiment of that 
Commonwealth is averse to the passage of this measure, I desire to 
submit to the committee some interesting data which 1 compiled in our 
State less than a year ago, and to follow that up by what subsequently 
occurred in the legislature of Massachusetts itself, all having direct 
reference to the bill under consideration. 

On the 21st of May, 1903, there appeared a broadside in one of the 
daily papers in the city of Lowell. The city of Lowell has a population 
of 75,000 people, and under our license law each city and municipality in 
the Commonwealth votes annually upon the question whether the sale 
of intoxicating liquors shall be permitted in the citv or town during 
the ensuing year. Under the provisions of that law tne city of Lowell 
voted no license, so that the city was under the operation practically 
of a prohibition law, most carefully and thoroughly drawn and sup- 
posed to meet the exigency of every case. Much to the astonishment 
not only of Lowell but to the Commonwealth of Massachusetts, creat- 
ing excitement in every section of the State and commented upon by 
all its leading newspapers in article after article, not only editorially 
but containing the opinions of some of the ablest attorneys in the Com- 



HEPBURN BILL. 197 

monwealth, appeared this broadside which I hold in my hand, which 
was an advertisement by one Charles H. Joyce, to the following 
effect: 

Imported ale in originalpackages. Dawes & Co., India pale ale, quart bottle 36 
cents, three bottles fl. This ale is now on sale at our store. The only place in 
Lowell where you can buy ale legitimately. 

Of course the question at once arose, under what authority of law 
were they authorized to sell pale ale, or malt liquors, for that matter, 
when they were acting under a prohibitory law of that State ? 

And it appeared — and they were acting under most astute counsel; 
one of the ablest lawyers in the commonwealth was consulted and they 
were acting uj)on his advice — that whereas under the Dingley bill of 
1897 distilled liquors could only be sold in 10-gallon lots, and wines in 
cases containing at least 12 bottles in the original packages (for if they 
contained less they were taxed as a case containing 12 bottles, and 
therefore would not be imported in less quantities); that there was an 
oversight, whether intentional or not we do not know, and that so far 
as malt liquors or ale were concerned there was nothing in the Dingley 
law whicn determined either how many bottles or what quantity 
should make an original package; so that under that contention these 
people maintained that ale was put up in a quart bottle, a pint bottle, 
or less quantity, if it was put up in the original package — and 
that was a very simple and easy matter to do, for it could be put up 
in the same way that all these liquors are sent out from the stores and 
boxed, with the necessary imprint upon them — they maintained that 
that was an original package, there being no limitation of the number 
of bottles or the quantity, and therefore they had the right under the 
laws of the United States to sell ales and malt liquors in that way. 
Of course there begun a discussion at once all over the Commonwealth 
of Massachusetts as to whether that legal principle was correct, and 
the justices of the district court were consulted and warrants were 
asked against these parties, and after very careful deliberation a jus- 
tice of that court decided that there was no authoritv in Massachusetts 
by which that sale could be prevented; for, although the provisions of 
the Wilson Act of 1890 were well known, there was a section of the 
license law in our State which recognized and affirmed, as it were, the 
right of such a sale and the inability of the authorities to interfere 
with sales so made. 

The excitement increased, and finally a petition was sent in to the 
Governor of Massachusetts and he was requested to obtain the decision 
of the attorney-general of our State as to whether there was any proc- 
ess of law by which the will of the people in the city of Lowell, which 
had voted against the sale of intoxicating liquors, could be carried out. 

We have one of the most astute and brilliant lawyers in the Com- 
monwealth of Massachusetts as our attorney-general at the present 
time, and he decided that there was no remedy unless the legislature 
of Massachusetts repealed that provision in our license law which 
affirmed, as it were, the principles of the Dingley Act, to which I have 
made reference. 

Now, the point I am coming at is this: That although the time had 
passed in the legislature of Massachusetts when a new bill could be 
introduced, and it was requisite that a two-thirds majority of that 
body should assent before it could be done, that on the introduction 
of such a bill so unanimous was the sentiment of the State of Massa- 



198 HEPBUBN BILL. 

chusetts that such a nullification of the will of the people ought not to 
be permitted, and that the sale of liquor so made ought to be pre- 
vented, that members of the legislature of all parties with scarcely a 
dissenting voice, showing it was the almost unanimous sentiment of 
Massachusetts, allowed the introduction of that bill, and it went 
through its various steps of progress from house to senate in the 
course of two or three days. 

That is not only indicative of how Massachusetts feels upon this 
(juestion, but that the fact that there has been pouring in upon us an 
innumerable number of petitions representing men of all parties and 
all creeds and all beliefs upon this question in favor of the passage of 
this bill proves beyond controversy that its enactment would meet 
with the general approval of all parties in our Commonwealth. 

I do not propose after the elaborate discussion which has been made 
before this committee as to the constitutionality of this measure to 
spend any time, except a moment or two, upon that question; but I 
would like to call the attention of the committee to this one fact. 

I listened very intently to the subtle and able argument made upon 
the constitutionality of this measure by the gentleman from Kentucty, 
and if 1 remember correctly he was obliged, in response to interroga- 
tories propounded by members of this committee, to say that after all 
it was an academic question he was discussing on his part and that 
decisions could be cited in which the positions maintained by him were 
controverted and those upon the other side were maintained. I have 
seen no reference here to the succinct and able report made by a gen- 
tleman of this committee in the Fifty seventh Congress, in which he 
lays down the law, citing from the decisions of the Supreme Court of 
the United States, sustaining the constitutionalitv of the Wilson bill 
and its modification, as desired by the bill which has been here intro- 
duced; nor have I seen any answer to this question, viz, that under 
the existing condition of things consignments are made to prohibitory 
States in large quantities, in original packages, to one consignee, an(i 
that consignee retails those liquors in those communities not only in a 
retail manner, but in a wholesale manner also. 

And those who are familiar with the discussion of this Question when 
it was in charge of the* chairman of this committee in the Fif tv-seventh 
Congress will remember that there was one case cited by Judge Smith 
in his own county where one consignee received at one time 100 differ- 
ent jugs of liquor, which were rete,iled out in his community, and for 
which, unless this bill should be enacted into law,- there would be no 
remedy. That is only one case In one State. 

There are thousands of such cases all over this country, and it is to 
meet these cases and to provide, as unquestionably the law authorizes 
to be provided, that the States which are acting, either in whole or in 
part, under prohibitory laws shall have the right under the police 
power which the Supreme Court of the United States has given them 
to reach such cases as these; and unless this bill is passed the will of 
the people of our State to have this power-of -police regulation granted 
to them will be powerless to prevent the repetition of such actions 
and the sale of liquor in original packages, because if they can not be 
touched until after the}^ reach the consignee they can not be touched 
at all in those cases where they are delivered to families; for when a 
man gets into his own house a jug of liquor so delivered, as it can now 



HEPBUBN BILL. 199 

be, who is there that can step in and say he shall not have the right to 
use it? ^ 

Therefore, Mr. Chairman and gentlemen, with these considerations, 
I do not desire to take up more of your time. 

Mr. Palmer. Mr. Tirrell, the real question in this case is whether it 
is wise for Congress to surrender to the State a portion of its power 
over interstate commerce. As you are a lawyer, an eminent one, and 
a good one, I would like to hear your views on that subject. 

Mr. Tirrell. I have not made a special study of that, but I wish to 
say that in the case cited by Mr. Clayton in his report last year, the 
case of Rhodes v. Iowa, if I understand the majority of opinion in 
regard to the effect that the Wilson Bill of 1890 had, taking all its 
phraseology together, the reasoning of the majority of the court is 
very ambiguous. 

It says you must not take any one word out of that bill; you must 
take the whole bill together and consider the last sentence with the 
first sentence; and considering it that way that the word ''arrive," 
which was in that bill, meant after it got to the consignee, and that is 
substantially all that the majority opinion does decide. Now, there 
was a minority opinion in that case, and that minority opinion was 
signed by Justice Gray and Justice Harlan and Justice Brewer, and 
in that minority opinion 

Mr. Palmer. Which case do you mean, the Rhodes v. Iowa case? 

Mr. Tirrell. Yes, sir. 

Mr. Palmer. It was Justices Gray, Harlan, and Brown. 

Mr. Tirrell. Justice Brown, instead of Brewer, yes. In that mi- 
nority opinion all the cases are reviewed, case after case, and they lay 
down the doctrine emphatically that the Supreme Court of the United 
States has repeatedly decided in analogous cases that that is not the 

E roper interpretation to give to the word " arrive," but that the moment 
quors pass over a border of a State then the law of the State becomes 
applicable. I think anyone who will read the minority opinion must 
come to the conclusion that the vast weight of authority is that way. 
If I understand it, it is this way: That the majority opinion in that 
case did not decide this question at all; it decided a particular case, 
and from the phraseology of the act taken as a whole they came to the 
conclusion — a majority of the court — that "arrive" meant in that case 
when it got to the consignee. And it is to meet that case, and all of 
the cases, and to bring all of the cases which had been previously 
decided where this matter had been in controversy before the Supreme 
Court, into the same line of decisions which are quoted innumerably 
in the minority report, that this bill has been presented. 

STATEMENT OF MES. FEENENDE EIGHTEE, ST. LOtJIS, MO. 

Mr. Richter: Mr. Chairman and gentlemen of the committee per- 
mit me to present to you a petition which is signed by thousands of 
American women, of whom a great many are of German descent. 
There are some more petitions coming in, and I beg leave to have 
them sent to you for your consideration. 

The petition reads as follows: 

The undersigned beg leave to submit a petition against the passage of the Hepburn 
and Dolliver bills. The passage of these bills would not only enable the State 
wherin we live to prevent us from enjoying a glass of beer or a glass of wine at our 



300 HEPBU BN BILL, 

tables, but it would also tend to estrange our husbands and sons from their homes, and 
entice them to places hidden froiu the eyes of the public and of the law, where we 
could not accompany them. We deem it our right to visit places of amusement and 
recreation with our husbands and children, and we believe that no man has the 
right to go anywhere where he can not take his wife and children with him. We 
deem it our right to select refreshments that we consider wholesome for ourselves 
and those we love. We believe that we are better able to lead our children into the 
paths of virtue and true temperance by the precepts of our mothers, than all the 
so-called temperance books in the country could do. Prohibition tends to destroy 
family life ana happiness, deprives women as well as men of their individual right 
to eat and drink what they like, leads to secret vices, and allures husbands from 
their wives and homes. We, therefore, pray that our national legislators will not 
pass the Hepburn and DoUiver bills, nor any other prohibition measure. 

We respectfully request vou, Mr. Chairman and gentlemen, to consider very care- 
fully any step that would help the prohibition movement in our Republic. 

As we undTerstand this bill against which we plead, it would prohibit the importa- 
tion of intoxicating liquors and liquids into certain States. This implies a gross 
injustice to a very large number of your best citizens and a wrongful attack upon our 
households. 

In a community laws must be established to regulate to a certain extent the rela- 
tions between individuals and to further their mutual interests. Laws are made to 
be obeyed. The law in question would be one made to be disobeyed. It will rob a 
man of a good friend — a glass of wine or beer after a hard day's work, to be enjoyed 
in his own home at his own table, amidst his own family. And would force him to 
endeavor to get what he honestly and sincerely believes to be his right — in spite of 
the law. 

Consider the danger ! For if he can not have his glass of beer or wine at his own 
table, because he can not buy it in his town or State, or buy it in any other State, to 
be sent to his home, he can easily smuggle in a bottle of most concentrated ardent 
spirits — a comparatively small quantity of which may serve as a poison for a whole 
family. 

The bill now before you says a great deal more between the lines than its harmless 
words seem to imply by prohibiting the importation of intoxicating liquids. 

What is meant by these terms? It is a well-known fact that a large number of 
patent medicines are sold all over the country, which contain even more alcohol than 
ordinary whisky does, and are used largely in place of intoxicating drinks by fami- 
lies in prohibition States. Such drugs are infinitely more harmful in every respect 
than beer and light wines. Should not this traffic also be prohibited? 

Is it proposed to regulate the interstate commerce of alcohol? As long as that is 
not jprohibited the proposed law will be a failure. For immense amounts of intox- 
icating drinks are manufactured by compounding, with commercial spirits as a basis. 

Nobody claims that refreshments containing alcohol are under every and all cir- 
cumstances injurious to the health of body and mind. They become so only by 
excess. Excess in all things must be avoided — also in legislation. Honey and candy 
eaten in excess are supposed to cause diabetes. Excess in meat is supposd to cause 
gout and Bright' s disease. Drinking of beer and wine is supi)osed by our prohibition 
friends to create in some people an injurious habit; but so will cocaine and mophine 
and so-called liver pills. Should not, then, all such traffic be prohibited? Coffee and 
tea partaken of in excess are poisonous. Coffee or tea is nauseating to some people. 
Because coffee does not agree with my system, should my sisters in womankind bfe 
robbed of their favorite beverage? 

Because a small percentage of men and women can not control their habits, must 
A'e all suffer? Because there are men and women and, more important still, badly 
brought up boys who ruin their health by smoking and chewing tobacco, should the 
traffic in tobacco be prohibited? 

Do you expect to stamp out crime by removing all possible causes — as you would 
take a plaything from a child's hands? Would you make theft impossible by confis- 
cating all property? 

In this country a strong dislike against paternalism prevails; it is objectionable to 
every liberty-loving citizen of our Republic, which has become what it is through 
the self-control of its founders and sustainers. Should the aversion against mater- 
nalism not be even stronger? Maternalism is a form of government that was aban- 
doned in prehistoric ages and should not be revived to initiate an historical age. 
We are not a nation of children to be governed by the slippers of mothers. This is a 
nation of men and women who are responsible for their use or abuse of liberty. 
Prohibition will deprive the people of that feeling of responsibility that is the strong- 
hold of wise education. 



HEPBURN BILL. 201 

£very pedagogue worthy of the name understands that he can control a child 
better by placine the weight of responsibility on its young shoulders than by inter- 
diction. Everybody knows that the word: '*you must not'' only leads tp trying: 
**if you can not anyhow." Even in insane asylums, where mental childhood is 
treated, will the wise physician gain better results by awakening the feeling of re- 
sponsibility in his poor patients than through the barbarious straight-jacket of 
forbidding. 

Only cnmes must be forbidden. Vices should be prevented by education. And 
Jean Jacques Rosseau, the great French philosopher, savs: *'I1 n'y a point d' action 
humaine dont on ne piit faire un crime.'' (There is no human action that could not 
be made a crime. ) 

Prohibition is another form of tyranny, a restriction of mind and will. Should a 
highly civilized nation that fights an^ and all forms of tvranny return to this anti- 
quated mistake? And will not prohibition breed one of the most contemptible of 
vices — hypocrisy; enticing men to do secretely that which they openly condemn? 
The dangerous old English "cant" should not be revived in our liberal country. 

I do not speak against temperance, but against prohibition. I know this to be 
uncommon in a woman. For if anybody has to suffer under the effects which intoxi- 
cation produces it is the wife and the mother; the daughter and the sister. Nothing 
compares in misery to the hell that rages in a home where drunkeness has a hold 
on any member of the family; and it is because we are aware of this — because some 
of us may have seen it — that we plead against the prohibition of light drinks on our 
tables which would signify the clandestine introduction of secreted drink — **the 
bottle of firewater hidden in the barn." 

We German-American women spring from a race that knows the great joy of 
living — *'die Lebensfreude." And this jov of living, this sense for the good things 
of life, this comprehension of the weightv factors in human life, laughter and recre- 
ation, is not the smallest gift Germany has made to our country through the good 
and law-abiding citizens it has sent us. We women know that the happiness of our 
homes — and I defv anyone to say that our homes full of children and tneir laughter, 
are not amongst the happiest in this country — depends to«a large extent on this joy 
of living and the consciousness that man needs recreation from physical and mental 
toiling. 

A man who has been working hard all day, no matter what his profession or trade, 
finds recreation by meeting his friends and congenial company after working hours. 
A woman who has been drudging all day in her household and with her children 
has also a right to such recreation. It is decidedly illogical to drive men and women 
into separate clubs to find entertainment. It lies in the interest of mothers and 
wives to share the diversions of men. The experience of centuries has proved that 
wherever families jointly frequent public places, where they meet good company, and 
where light drinks are served and good music is rendered, the moral qualities have 
been highest and the greatest happiness has prevailed. A man should not go where 
his wife can not go with him. The presence of the wife refines the ways of men. 
For where such a custom has not prevailed men have taken to indulging in strong 
liquors; and, not being restrained from excesses by the presence of pure women, 
easily fall a prey to other vices. 

That beer and light wines, even if taken regularly by women, are conducive to 
their general health, is proved by the physique of the average German-American 
woman and her ability to do her duty to the family as well as to the State. Pro- 
hibiting all this, by not allowing the importation of beer and wine into our homes, 
will assuredly lead to the habit of imbibing strong liquors, and will create vices which 
lower the condition of not only the family, but also of the nation. 

In an editorial on the suffocation of infants in bed by the overlaying of mothers or 
nurses, the well-known journal, "The Medical Record," of December, 1903, makes 
the following statement: 

"In the last ten years England and Wales were deprived of 15,000 infants through 
their being suffocated in bed by their parents and nurses. * * * In France and Ger- 
many the mortality of infants, even in the great cities, from this suffocation, is grati- 
fyingly rare. A very direct relationship seems to exist brtween the amount of 
arunkenness in women and this form of infantile death. A drunken mother on the 
Continent is almost an unknown sight. Indeed, throughout the wine-producing 
belt of Europe, it is well known that drunkenness is rare — padded cells and delirium 
tremens wards being almost without exception unneceesary. * * * With the 
increasing density of our population and a corresponding approximation of our 
conditions to those existing in England, it will be of interest for us to follow closely 
the course pursued by the British jurists in their efforts to limit this unjustifiable 
destruction of life. People have not only a natural right to recreation, but it is a 



202 HEPBURN BILL. 

necessity for us Americans in these strenuous days, particularly so for the working 
classes, who are the bone and sinews of the nation. If you rob workingmen and 
working women of their light refreshments at home you will undoubtedly drive 
them to the use of strong liquors and ruin their families. 

We German- American women do not claim to know miich about government, 
national laws, and regulations, except those which obtain in our own households, 
and some women may know more about practical politics, but Mr. Chairman, there 
is so much written and spoken nowadays about "home making" by club ladies, 
that you will permit me to say that we do not talk much of *'home making," but 
we do it. That may be the reason why we are not interested in politics. But should 
women who do not vote influence voters? Are the women who plead for this law 

g leading for or against their own husbands and fathers? If a woman does not know 
ow to share and regulate her husband's recreations and behavior, no law under the 
sun can assure her true happiness; for no fanatical crusade against the enjoyment of 
the ^ood things of life and no forcible methods which eventually culminate in the 
mama of the reform hatchet and the anarchism of dynamiting saloons will give her 
a peaceful home. 

The women whom I represent and who contend that they are as respectable as 
any know this and therefore do not drive the men of their families to drinking in 
secret. 

Mr. Chairman and gentlemen, your constituents have elected you to represent their 
best interests, and I least of all intend to influence j^our decision, but I do most 
emphatically protest against a spirit of matemalism which tries to make you believe 
that it is your duty to regulate our households, and which emanates from what I 
sincerely believe is the minority of American women. A minority composed of 
women who have studied the question from a very narrow standpoint. But, be that 
as it may, Mr. Chairman, the rights of even a minority should certainly not be inter- 
fered with by a majority, nor vice versa. 

To again quote Jean Jacques Rousseau: " Chercher son bien et fuir son mal en ce sui 
n' offence point antrui, c'est le droit de la nature." (Aiming for the good and avoid- 
mg the bad, in all thin^ trhich do nojb harm others, is nature's right. ) 

Believe me, Mr. Chairman, we are not solely pleading for beer and wine, but for 
a broad moral principle which, if lost, will necessarily be a precedent for further 
invasions into the nrivacy of our families. I am not addressing you 14 the interest 
of the capital and labor employed in the production of beer and wine, but in the 
interest of what we women conceive to be true libertyj that liberty which American 
institutions guarantee and which should not be curtailed by laws like the one pro- 
posed. We plead for that liberty which makes our homes brighter and which does 
not interfere with the happiness of those who wish to regulate their lives differently, 
but whom on the other hand we will not permit to dictate to us how we shall live. 

We protest against those who have come here purporting to be the sole representa- 
tives of womanhood — women who have clubbed together under any number of 
pretexts, not to assist the poor, nor to care for the sick, nor to console the orphans, 
but who have set up ideals of their own, in direct contradiction to the experience of 
all ages, and who now try to force their abstract impractical notions on their own 
sisters — not by teaching, but by insinuations; not by example, but by force; not by 
love and the spirit of kindness, but by coercion — by attempting to influence the 
legislators of our nation to do as they wish. 

This, Mr. Chairman, is not the flrst time that women have been forced to defend 
the personal liberty of their husbands, which again seems threatened by man's 
courtesy to woman. We come here, not because we court notoriety, on the con- 
trary, but to show you that the prohibitionists in petticoats do not represent all the 
women of our nation, and because we know that the plesuiing of women flnds its 
greatest succor in the natural politeness of man, and chivalrous men only too often 
act against the plain and clear interest of the people at large by civility to the impor- 
tuning of such women who claim politeness as a privilege superceding right. Courtesy 
to them, Mr. Chairman, would be tyranny to us. 

Therefore, in the name of your petitioners who gave to the Union the best they 
could give, their sons whom they taught to battle for Old Glory even unto death; 
their daughters whom they taught to build up happy homes and to send forth sons 
and daughters that are a credit to our nation — in the name of these American women 
I do protest against any assault on the freedom of the individual and our happy 
homes! 

Mr. DiNwiDDiE. 1 will introduce at this time the Rev. S. E. Nichol- 
son from Indiana, who will represent the Orthodox Friends, now of 
Harrisburg, Pa., who is also the general secretary of the American 
Anti-Saloon League. 



HEPBURN BILL. 203 



STATEMENT OF £EV. S. E. NICHOLSON, SEGBETABT OF THE 
FEIENDS' LEGISLATIVE BOAED IN AMEEIGA, AND OENEEAL 
SECEETAET OF THE AMEEICAN ANTI-SALOON LEAGUE. 

Mr. Nicholson. Mr. Chairman and Gentlemen of the committee: I 
very highly appreciate the opportunity of being allowed to speak a few 
minutes this afternoon in behalf of this Hepburn bill, and I am glad 
also of the privilege of being here in an oflicial capacity. I think I 
ought to maKe that plain. I happen to be the secretary of the Friends' 
legislative board of the Friends' Church, representing a membership 
of 92,000 or 93,000 persons, and while we do not have a very large 
constituency as conapared with the numbers presented this morning 
by my friend from rittsburg, I am glad to believe that a large number 
of my constituency are counted among the best citizenship of our 
Republic. 

It shall be my aim in whftt I have to say to touch the points that I 
consider are involved in this bill. I shall not take up your time, for 
instance, discussing the various astounding propositions that a law 
must not be enactea, because by psychological or other process it will 
compel people to violate it. To my mind, that is not m accordance- 
with the American ideas of government. Nor shall I discuss the other 
question or proposition tfiat nas been advanced here to-day, that Chris- 
tianity has nothing to do with the attitude of a legislative body or of 
the American people controlling a traffic which the Supreme Court of 
the United States has declared to be productive of crime, and of misery, 
and of insanity, and of pauperism. 

Nor will I, if you please, take your time in discussing the merits or 
demerits of the prohibition question, for, to my mind, they are not 
involved in any particular in the bill that is now before this committee. 
And I beg to submit, without any intention whatever of reflecting 
upon the purpose or the intelligence of the opposition of this meas- 
ure, in the arguments that have been made all over this country in 
getting these petitions that have been presented here to-day that the 

?uestion has not been presented to them as it ought to have been, for 
believe that if this measure had the effect or purpose of prohibit- 
ing intoxicating liquor in any State in this Union I would not be here 
advocating its passage this afternoon; not because I would not be in 
favor of that happy consummation, but because I do not think it would 
be within the probability that the Congress of the United States, at 
this time, at least, is going to take any such position on this question. 
I take it that it is understood everywhere and accepted as a fact, 
both by courts and by legislative bodies, that the States of this country 
are guaranteed the right to deal with the liquor question by controlling 
it, regulating it, or by prohibiting it, as they may determine best suite 
their own needs. It seems to me that it ought to follow as a neces- 
sary consequence that if that right is guaranteed to the States they 
ought to be guaranteed the privilege of exercising that right without 
any interference whatever, even although interference might be the 
interstate commerce law of the United States, unless it can be shown 
that the guaranteeing of such exercise would be contrary to the Con- 
stitution of the United States, or contrary to the express purpose of 
the Congress of the United States. I take it that there will be no 
contention whatever as regards the powers conferred on Congress by 



204 HEPBURN BILL. 

the Constitution, in that it is directly said in the Constitution that 
Congress shall have the right to regulate the commerce of the country, 
both foreign commerce and the internal conmierce, the domestic com- 
merce of the country. I say there will be no contention with refer- 
ence to that. 

It seems te me, Mr. Chairman, therefoi'e, that there is only one 
point here — only one point in this bill — and that is the determination 
of Congress as to the tune when it shall surrender, if you may use that 
term, the privileges that it now has under the Constitution to the 
States with reference to one article, of intoxicating liquor. It seems 
to me that is the only question Congress needs to be concerned about 
in this measure — ^the time when it may say to the States " You may 
have jurisdiction in the traffic in intoxicating liquors." I hope we 
will not get away from that in our discussion and in our thought upon 
this question. 

I am sure that the committee will pardon me, if, in order to get at 
the ri^ht determination of that matter, I tnke just a moment or two 
to review some matters that, as it seems to me, have all been covered^ 

S^rhaps, and yet we have been going over a broad ground to-day in 
scussion. It seems to me it is well for us to get back again to some 
•of these things that we should keep in mind. 

I am not a lawyer, and yet there are some principles of law that 
even a layman may undertake to have some views upon and occasion- 
ally expound. I find that for nearly fifty years, nearly half a century 
prior to 1890, it seemed to be the understood custom of Congress and 
of the courts to recognize the right of the States to have complete and 
absolute jurisdiction over the traffic in intoxicating liquors. A case 
was decided in 1847, a New Hampshire case, which made that very 
plain, and in a decision of Chief Justice Taney — I have not the refer- 
ence here, but I can file that if it is necessary to be done — that was made 
very plain. In about the year 1888 a question arose, coming from the 
the State of Iowa, I think, under the prohibition Ip-w of tnat State, 
which, by a series of decisions, lead up to the point of the Supreme 
Court taking a different attitude upon tnis question. 

I may say that under the decision of Chief Justice Taney it seemed 
to be the decision of the Court that the State had absolute jurisdiction 
on the liquor question within the State, because Congress said nothing 
about the matter, and they took it for granted that in the absence or 
any legislation on the part of Congress the States therefore had this 
right. The decision, as I have said, was given by Chief Justice Taney, 
and that seemed to be held to from 1847 to 1888, when the question arose 
in a new form. 

Through a series of decisions in two or three years, about 1888 and 
1890, the court practically reversed that decision and took the position 
that because Congress had not said anything upon the question, and 
inasmuch as the Constitution conferred upon Congress the right to 
deal with interstate commerce, that therefore States had no rights in 
the matter in so far as interstate commerce was concerned, so that liquor, 
under that decision, could be shipped into a State and not only be 
delivered to the consignee but that consignee could in turn sell it to 
somebody else, provided it was sold in the original package in which it 
was received by the consignee. 

Then arose the condition, which has already, I think perhaps yes- 
terday, or a month ago, been detailed before this committee, of the 



HEPBURN BILL. 205 

original-package houses that sprang up in many places in the country, 
which became a very great nuisance in the communities. There was 
a loud demand all over the country for some action on the part of 
Congress in reference to the matter, and more so because the Supreme 
Court seemed to have intimated that it was within the province of 
Congress to act upon this matter, that in the absence of any Congress- 
ional action certain conditions must prevail under the construction of 
the powers of Congress. Therefore, when this agitation reached a 
certain point in the year 1890 there was passed the Wilson law, with 
the terms of which you are familiar, and your attention has already 
been called to this measure. 

I do this simply that we may get our thoughts concentrated on this 
bill. I need dwell upon the fact that it was evidently the purpose of 
Congress in 1890 to enact in the provisions of the VVilson bill just 
what is attempted to be enacted in this Congress by the Hepburn- 
DoUiver bill. I feel I can not emphasize uiat too strongly, even 
although I may repeat it. The discussions in Congress at that time— 
and I may say I have taken the time to go over this in part, not alto- 
gether, but in part — and I have been struck by the fact that the argu- 
ments in favor of the passage of the Wilson bill by members of Con- 
gress at that time were almost synonymous with the arguments that 
seem necessar}'^ at this time for the passage of this measure, and the 
conditions at that time prevailing were in large part synonymous with 
the conditions prevailing at the present time. 

But, by an unfortunate expression in an act — because it said that 
the State jurisdiction should begin upon the "arrival" of the liquor, 
as the Congressman from Massachusetts has said — the Supreme Couii; 
in interpreting that gave this sort of decision in effect: That liquors 
could still be shipped into a State from another State and delivered to 
the consignee. The sole effect, therefore, of the Wilson bill was that 
consignee could not in turn sell it to somebody else. 

I think reference has been made probably sufficiently to conditions 
that have grown up under that decision. TThe result is that in a com- 
munity a number of packages will come to the station agent or to the 
express agent consigned, as 1 have been informed — 1 can not vouch for 
this from personal knowledge, but 1 have been so informed — to A, B, 
or X, or some other such name as that, and somebody will come in 
and say "I am A," or ''I am X," and pay the C. O. D. charges and 

fet the liquor. Or packages come in to be delivered to John Doe or 
ohn Smith, and somebody comes in and pays the charges and gets 
the liquor. 

So that in many communities where the States have occasion to deal 
with this question, and have said to their own citizens ''You shall not 
conduct a liquor ti-affic in our State," the result is under the Wilson 
act that persons outside the State, the wholesaler or the manufacturer, 
becomes a saloonkeeper for that State, and the express agent becomes 
a barkeeper, and the express company's building becomes the barroom 
for the transaction of that business. 

Now, with that condition has grown up a condition which was 
similar, perhaps in many respects worse, than the condition that pre- 
vailed just prior to the enactment of the Wilson law. Then the 
question comes before this committee — ^and that is a question for you 
to consider, it seems to me — are you justified in giving relief to the 
States that will remedy the sad condition that has grown up? 



206 HEPBURN BILL. 

There is the other question involved that 1 have intimated is the 
prominent question, and that is whether or not you will give by act of 
Congress the rights to the States upjon this question that seems to them 
to belong to them; whether you will give to them the full exercise of 
those rights which the courts have already recognized are a part of 
their ri^ts as States in dealing with this question. Just one or two 
other things I want to suggest. One is that if there were reasons why 
the Wilson law should be enacted in 1890, and the Wilson law was 
enacted, which relinquished part of the rights that Congress had 
under the law and under the decisions — that is, the right of a consignee 
to sell to some other person — then by virtue of that action is not the 
present Congress fully justified in passing an additional act which will 
fix the time a little more conveniently for the State in dealing with 
this question? 

The precedent has already been set so far as Congressional action is 
concerned in the passage of the Wilson law in fixing the time when 
State jurisdiction attaches to intoxicating liquors u^on its delivery to 
the consignee. Now, then , if Congress could do that in the one instance, 
might it not, when there seems to be such a great demand for such 
action for the public good — might it not take the other step and do a 
similar thing, and say that State jurisdiction shall attach when it enters 
the State — crosses the border line? And not merely when it is a con- 
signee at some point within the State? It seems to me that if one 
action is justified, either from constitutional grounds or upon the 
grounds of propriety, that the other action is as well justified. 

Just one other thing I have in conclusion, and that is the effect of 
this measure. 1 have already intimated that this is not a prohibition 
law; it does not mean that intoxicating liquors shall not be shipped or 
imported into any State. Congress takes the position, I take it, as 
the courts have taken it, that the Stfites alone are the ones to deal with 
this question. 

Just at this point I do want to make another point. Reference has 
been made to the action of the Federal Government with reference to 
the internal revenue tax. It has been claimed, and justly claimed, that 
what we hear sometimes spoken of as the internal revenue license, or 
the Federal license, is in no sense a license, and that is true, and it 
ought not to be called a license, because it carries with it no privileges 
whatever to sell these things within a State; it only exempts a man from 
any interference so far as the United States Government is concerned. 
The Federal Government has taken the right position on that, to my 
mind, in that it leaves the State to decide whether it will allow a man 
to sell liquor, and the Federal Government will not interfere with that 
right. 

But may I not call attention to the fact that in the absence of any 
action as required by this bill that at another point Congress does 
come in and interfere with the rights of the State in a negative way, 
if I may use that expression. Congress by its silence on this question, 
and its refusal to pass a measure of this kind, said to the State, '' You 
shall not have complete jurisdiction over the traffic in intoxicating 
liquors within your borders." So that if it is the policy of the Fed- 
eral Government, as I believe it is meant to be its policy, to leave to 
the State's jurisdiction upon this question complete and absolute, then 
it seems to me that from the standpoint of fairness this measure 
ought to become a law. 



HEPBURN BILL. 207 

The point I was going to make in conclusion is in reference to the 
effect of this measure^ May I say that the passage of this bill by 
Congress will not change, so far as your action is concerned, a single 
State law upon this question in this country. It would not prevent 
the importation — so far as this act is concierned — it would not prevent 
the importation of liquor into any States of this country, unless it is the 
West Virginia law that was passed two years ago or one year ago. 

Doctor Crafts. This law will not do it. 

Mr. NiCHOi^soN. No; this law will not do that in any sense whatever. 

Mr. GiLLETT, of California. Can they stop importation unless we 
pass this law? 

Mr. Nicholson. No, sir. 

Mr. GiLLETT, of California. Then does it not indirectly prevent 
importation by making it possible to stop it; is not that the effect? 

Mr. Nicholson. Your business is to give to the States that which it 
seems to have been the policy of the Government all the time to give 
to them, jurisdiction of the traffic in intoxicating liquors. Then if tney 
go ahead and enact different legislation that is a different question. 

Mr. GiLLETT, of California. Did the Congress give that or did they 
reserve that if They never surrendered that. 

Mr. Nicholson. I do not know whether Congress could give that 
to them. All that Congress, it seems to me, can do, and all it is asked 
to do in this measure, is to simply grant the full exercise of the police 
power with reference to the liquor traffic that has been generally 
understood as belonging to the State, and so Congress is not asked, 
therefore, to pass any prohibitory bill. If in any otate the popular 
sentiment of the State demands something else, then that is a matter 
Congress had nothing to do with. Your responsibility ends, it seems 
to me, when the question has been determined as to the time— I go 
back to that point— as to the time when State jurisdiction shall attach 
to intoxicating liquors. 

I thank you very much. 
' Mr. Bartholdt. I take pleasure in introducing Miss Phoebe Cou- 
sins, a lady well known* to you all by reputation. 

STATEMENT OF MIS8 PHOEBE COUSINS. 

Miss Cousins. Mr. Chairman and gentlemen, shall ask to beg the 
courtesy of this committee and sit while I speak, as I am somewhat of 
an invalid and a little lame. 

I came here somewhat unexpectedly this morning simply to listen, 
but in speaking with my friend, Mr. Bartholdt, who is from my own 
city, he suggested that I should say a few words, and so I have come 
back here this afternoon to add my word against the passage of the 
DoUiver-Hepburn bill. 

In listening to the lady who preceded me I could but feel that Olive 
Schreiner's words a few days smce on the new women were quite per- 
tinent to us all. She says, as near as 1 can condense it, that there is 
no new woman, it is the old woman from the Norse nations who stood 
shoulder to shoulder with her husband in all the great Questions of the 
Germanic dynasty and of the German nation, and witn the spirit of 
Brunhilde and Fredegunde, the spirit of the German women has come 
down through these generations, and to-day Germany stands as the 
leader in both men aiid women in art, in science, in literature. And 



208 HEPBURN BILL. 

yet Germany has her laws in which the appetite of man is given free 
rein if he so choses; all of the beer gardens are open to both men and 
women, and a man can take his family and sit in a garden or in the shop 
with perfect immunity and no evil results are seen to any extent. 

So 1 come to say just one word on the execution of the law. It 
seems to me that Dr. Mary Walker touched the keynote of this whole 
question in the few words which she said this morning. Can you exe- 
cute the law if you pass it? I stand here today as possibly a unique 
example of woman, in that I have been a United States marshal. I 
have been the executive officer of the eastern district of the State of 
Missouri upon the death of my father, appointed to that position by 
Justice Miller of the United States Supreme Court, and I had there as 
an officer an object lesson such perhaps as no woman and perhaps few 
men can know in the execution of the internal revenue laws. The 
question is, can you execute this law? 

How will you enforce it? We have just had an exhibition in the 
two courts of the highest authority, the Hague Tribunal and the 
Supreme Court of the United States, which has brought to the heaits 
of those who watch for the beacon light on the mountain top for the 
final triumph of justice and right — these two decisions have set back 
the hopes of humanity for a whole generation. Some of you are old 
enough to remember the frightful civil war, and how men and women 
on both sides of this Union laid down their lives for what they believed 
to be right, and there are thousands, hundreds of thousands, of men 
lying in unknown graves to-day and thousands of women with broken 
hearts. 

We feel the unity of this Government in blood of men and women 
on both sides. And yet to-day after this decision of the civil war that 
the Federal Government is supreme over its citizens; that the humblest 
citizen, no matter of what color, white, brown, gray, or blue, has the 
right to his opinion and to have that opinion counted, and after the 
result of the war has been formed and fused into our Federal amend- 
ments to the Constitution, the fourteenth and fifteenth, the United 
States Supreme Court decides, through Judge Day, when a humble 
citizen of Alabama comes up to ask for protection in his franchise, that 
the State law is supreme and that Federal authority can not be exer- 
cised. And only one justice on the bench, Justice Harlan, dissented. 

When peace and order came the Southern States accepted the four- 
teenth and fifteenth amendments as a condition precedent or subse- 
quent to their return to the Union; and yet to-day by the decision of 
tne Supreme Court that is entirely overthrown. 

Therefore, gentlemen, I say if the Supreme Court decides that it 
can not protect this humble citizen by its amendment, how are you 
going to enforce this more simple law? The objection which I have 
to this whole question is its hypocrisy. 

In the days gone by, in my salad days, as President Roosevelt would 
say, I was an ardent prohibitionist, a strong temperance woman, but 
through the years in my long public experience I have come to see 
that prohibition is an impossibility, that it breeds hypocrisy, that it 
breeds in our boys cunning and duplicity. Two years ago I was in a 
little town near the springs for the benefit of my health, and it was a 
prohibition town. I learned there by the experience of a whole sum- 
mer of the evils of this prohibition. The liquors were brought in and 



HEPBURN BILL. 209 

hidden in stables and the boys went down there to drink and play 
cards without any let or hinderance. 

Just before General Butler died I chanced to meet him in a Penn- 
sylvania avenue car just opposite his house, and he struck the keynote 
of this whole question in speaking with me on the Mormon question 
(which was then up, and I navin^ been chosen by the citizens of St. 
Louis to be placed on the commission to so to Utah under the Edmunds- 
Tucker bill). General Butler discussed the appetites and passions of 
men, and as near as I can remember he said tnis: The appetites and 
passions of men are the great and telling forces that drive the whole 
machinery of civilization forward. Without them the world would 
sink into barbarism and decajr. 

The desire to pei'petuate himself in a family and to build a hearth- 
stone, and center around that hearthstone the love that brings in its 
train all that makes life worth living, is the divine impulse that is 

Planted in the soul of all humanity for its blessing and its advancement, 
'hat the sex affinity is vitiated, is prostituted, and made to run riot and 
bring ruin and disorder to humanity, does not cut any figure in the 
question as to its immensity and its possibility, and the fact of the 
potentiality and its final blessing of him, his children, and the sweet 
and virtuous lives of men and women. 

So, too, he said, the appetites are the twin companions of the pas- 
sions, and without them, these two combined, there is no advancement 
of the race in progress or civilization. 

Great Britain to-day, with all of her boasted civilization, holds India 
and China in subjection by the fact that she paralyzes all this magnifi- 
cent passion and appetite of the Hindoo and of the Chinese by her 
demoralizing opium traffic. Mr. Carnegie said in an article in the 
North American Review that it will not be many years before India 
will run blood, with the effect that they will finally throw off this des- 
potism of opium and return to their own. 

I was talking with a gentleman from Brooklyn who is acquainted 
with all the magnificent reforms which were instituted by Mayor Low, 
and he told me that it was the mere fact that Mayor Low had exercised 
his authority too severely in enforcing the excise law that had caused 
him to be defeated, and that no mayor of New York had given so fine an 
administration to New York and Brooklyn as Mayor Low. And yet 
the fact that he took from the humblest citizen the right to get a drink 
when he wanted it was the cause of the overthrow. Not a democratic 
revolution, gentlemen, as some of you would have it understood, but 
simply because they wanted the right to a drink when they liked. 

And now let me say but one word in conclusion, and that is, your 
prohibition States do not show the advance and the progress that 
it would seem they should make in these laws. I read recently in 
regard to Senator DoUiver and Mr. Hepburn's State (Iowa) that 45 
children less than last year are absent from the schools, and the state- 
ment was made that the only cause that could be assigned for it was 
that the young and vigorous men of Iowa had removed to the far 
western States and taken their children with them. 

The fact is, gentlemen, that severe prohibition does not prohibit, 
and, as I said, it produces hypocrisy on all sides. 

And in closing let me illustrate to you what you see in everyday life 
in reference to this question. Some three years ago I was very ill 

H B-04 14 



210 HEPBURN BILL. 

one night and a lady in a room above me brought me some good old 
Bourbon, and in the morning the glass was standing on my table and 
the cook, a survival of ''good old slave days," brought me my coffee. 
At once her glance at the bottle indicated to me that she wanted a 
drink. I said, ''Julia, that does not belong to me, but the lady 
upstairs, and so I can not give you a drink unless she would give me 
authority." She set the coffee down and went out and came back in a 
few moments, returning with a china cup and looking very implor- 
ingly, and she said, "I have just swallowed a fly and 1 am so sick that 
I must have a drink." 

That perhaps may illustrate one point of the many deceptions which 
men bring to get their liquor. 

Permit me in closing these few words, which I feel are somewhat ram- 
bling, to commend unto you nature, to follow nature's laws and be 
wise, and in doing this it not only may give to each State the self- 
government which implies self-restraint, but open wide the doors, 
feeling sure that they will not fall into temptation, if self-government, 
which this lad}^ has so beautifully illustrated, is taught by the parents 
of our children. 

Mr. DiNwiDDiE. At this point 1 would like to introduce Mr. Joel 
Borton, who represents the Society of Friends. 

STATEMENT OF MB. JOEL BOSTON. 

Mr. Borton. Mr. Chairman and gentlemen of the committee, ladies, 
and gentlemen, I represent the religious body of Friends in Philadel- 
phia who held their yearly meeting at Fifteenth and Race streets, num- 
bering about 11,000. 

I represent them here in the interest of this bill because we believe 
that it is founded upon justice and truth, and this representation of 
ours, I am sure, are educated up the point that we will be willing to 
support a measure like this if you will pass it and allow it to become a 
law. 

We are here in the interests of this bill because it is founded upon 
good, common sense, as I believe all right laws are instituted and 
founded not only in the present day, but from the very beginning of 
time. 

"If thou doest well thou shalt be accepted" was a simple law. 
"Cease to do evil and learn to do well" was the law that came to 
Isaiah. "As ye would that men should do unto you do ye even so to 
them" was the law given b}'^ the great Divine Master. And now it 
seems to nie that this bill is founded upon that very principle, that 
as ye would that one State should do to you do ye even so to them, 
and that this Government ought to sustain such a law. 

I think, my friends, that we have departed from the subject too 
much to-day in a discussion of temperance and prohibition, and yet I 
do not feel quite clear without — as this has been done — refuting two 
or three things that have been mentioned here, especially with refer- 
ence to that greatest library of all others — the Holy Scriptures, the 
Book of Books. I can not conceive how anyone who has read from 
Genesis to Revelation in that book failed to see only the one side of 
the temperance argument; failed to read that Solomon declared that 
" Wine is a mocker, strong drink is raging, and whosoever is deceived 
thereby is not wise;" warning them, admonishing them in regard to 



HEPBUBN BILL. 211 

the wine when it is red in the cup, and that it '' biteth like a serpent 
and stingeth like an adder." How is it these were not brought up as 
evidence this morning from those who said they were ministers of the 
Gospel. 

Then again, in reference to this that we read in regard to the wedding 
feast, the wine that was produced there by the Master. 1 believe that 
it was the governor of the feast who decided that that was the best 
wine, and that Jesus himself told them to draw it and fill the water 
pots, draw and fill them with water and then hand it out to them; and 
those who partook of it at one time, '' How is it that they have saved 
the best wine until the last? " Usually it is customary to give the best 
first, and when men have well drunken then to bring in the poor wine. 

Is it not an open question whether or not those wno had been drink- 
ing, perhaps for hours, had become so 4ntoxicated that they could not 
teil tne difference between wine and water? Then again, did not the 
Master say that no drunkard should enter the Kingdom of Heaven? 
Again, and this comes down to the question now, did not the Apostle 
Paul say that "if by eating meat or drinking wine my brother is 
offended, I will refrain myself?" 

Here, ladies and gentlemen, 1 believe this is the point that we to-day 
want to come to, and upon which this bill hinges. That the 30 or 35 
States which have prohibitory laws directly or indirectly should have 
the protection of the Federal Government in sustaining those laws of 
their own States; that this law should be enforced there, that if by the 
partaking of wine others are offended I will myself refrain. 

In regard further to this argument presented bv my brother, the 
brewer, he admitted himself the injurious effect when his wife plead 
with him for her children, and he admitted that he would try it, and 
the moment he saw there was danger that he would quit the business. 
He admitted there that there might be a danger in it, and then he for- 
got other mothers' children ana did not say that he would enter a 
Erotest and would cease manufacturing to save the thousands and 
undreds of thousands of other mothers^ sons. 

1 am here to appeal to this committee and to Congress on behalf of 
the Friends of Philadelphia, to appeal to you on behalf of my own 
familv and myself in the interest of God and the spreading of His 
kingdom on earth, that you will give this a most careful hearing and 
will do all that is in j^our power to pass the bill and have it become a 
law, because it is founded upon justice and truth; because it is simple 
and plain and in accordance with good common sense, upon which all 
the real, true, living principle of all the laws of our land are founded. 

I thank you. 

Mr. DiNwiDDiE. We would now like to hear from Mr. Kellar, who 
is president of the District of Columbia Christian Endeavor Societ3\ 

STATEMENT OF MR. OWEN P. KELLAE. 

Mr. Kellar. Mr. Chairman and gentlemen, 1 am proud to speak 
for more than 7,000 voung people, .members of the evangelical churches 
of this city, belonging to the Christian Endeavor Societies of which I 
have the honor at this time to be president. We had a convention last 
month and the closing night of that convention we adopted some reso- 
lutions, one of which is in favor of the Hepburn-Dolliver bill, and I 
would like to read it: 



212 HEPBURN BILL. 

"As Christian Endeavor stands for pure homes and good govern- 
ment, and the liouor saloon stands as the enemy of both, we are un- 
alterably opposed to the saloon under every name, whether licensed or 
unlicensed, and we heartily indorse the bill now pending in the Con- 
gress of tne United States known as the Hepburn-Dolliver bill, the 
{)urpose of which is to petmit each and every State to control the 
iquor traffic within its own borders." 1 do not need to argue this 
question, gentlemen. You have heard arguments more than you 
need, but I submit that such a law would be eminently fair and just, 
m accordance with the principle of home rule. It is conceded, I be- 
lieve, by everybody, that local option is constitutional, even if it is 
impracticable. Some say it is impracticable. If a State has the right 
by the voice of their lawful voters to say that in a State liquor shall 
not be sold, or if the voters of any municipality or any township has 
the right to say by a majority vote that liquor shall not be sold within 
their town or township, is it not be perfectly proper, is it not legiti- 
mate, for the Congress of the United States to make that possible? 

Under the present condition of affairs it is not quite possible for 
them to enforce a local-option law, and if Congress should find that 
they have made a mistake the same power that passes this law can 
easily repeal it. Or if the law be unconstitutional, as our friends 
insist it will be, if passed, that fact will be determined by the courts. 
This committee, the Congress of the United States, certainly can not 
make a mistake in passing the law. If it should prove to be a mistake, 
the mistake can be easily corrected. 

I can remind you, gentlemen, that in the past few years you have 
done some acts that have earned for you the approval and the grati- 
tude of the Christian people of this country— a very large number of 
them. We thank God that no longer is liquor sold in this Capitol 
building. We thank God that the Army is now without the canteen, 
and we thank that man, John D. Long, who by an order banished 
beer from the Navy. 

Gentlemen, thousands of men and women are blessing God for those 
actions, actions of this Congress and the officials of our Government. 
Pass this law and you will earn the gratitude and the blessings and the 
'prayers of those same people. 

STATEMENT OF ME. P. A. WILDEBMUTH, OF THE PHILADELPHIA 

BAE. 

Mr. Chairman and gentlemen of the Judiciary Committee, there has 
already been much said pro and con regarding this Hepburn-Dolliver 
bill, both from a legal aspect and also from a commercial standpoint. I 
would like to call attention to a few words contained in the bill itself. 
On line 5 you will find the words "use, consumption," and on line 6 
"storage." The one word there "sale," which is mixed in with these 
words "use, consumption "and "storage," may be all right. Butfrom 
those words contained in this bill if a State sees fit it can seize any and 
every article of liquor that comes into that State and destroy it, 
whether it is for a citizen's own private use or whether it is for his 
own consumption or whether he has it stored in his own cellar. 

What would prohibit the police power of a State under this word 
"storage" here from going into a private citizen's cellar and saying*, 
"You have contrabrand goods, you are a lawbreaker, and we will 



HEPB0BN BILL. 213 

take them from you." Mr. Dinwiddie yesterday said it is not the 
object nor the purpose of the bill to deprive the citizens of their right 
to use liquor; that is, for the use of themselves and families. He 
refers to States that maintain the same position; but he knows that the 
very object of this bill is to take the right away from that citizen, for 
his own use — he knows that — and anyone in reading this bill can see 
that '' nigger in the wood pile." 

Mr. LiTTLEFiELD. Youi proposition is that this bill accomplishes 
that result; that is your opinion as a lawyer? 

Mr. WiLDERMUTH. Ycs, sir; as it is at present drawn. Again, here 
it has the word "before" on page 7, "before and after delivery." 
Now, that word taken in connection with section 2 would mean that 
no carrier will take goods in one State and bring them into another 
State where their delivery would be prohibited. In other words, a 
common carrier does not want to break any law, and if a State should 
make liquor an article to be seized when brought within the State, 
then the carrier in the first instance would not take those goods in any 
other State for shipment into the State where it is prohibited. That 
is another thing that this Mil provides for. 

Another thing that we should look at is that we want to leave noth- 
ing to judicial construction. We want to look at this act and see in 
what manner it can be enforced. 

Mr. Palmer. If you can not enforce it, what are you worrying 
about? 

Mr. WiLDERMUTH. We are not worrying about it. It is a confes- 
sion of the weakness of the jjrohibition State that they can not state, 
that is what is worrying the people. 

Mr. Palmer. Does that worry you — that the prohibition States can 
not prohibit? 

Mr. WiLDERMUTH. It docs when a negative measure of this kind is 
brought here to destroy the liberty of two-thirds of the people whose 
rights should be inalienable as to what they should drink. 

Mr. Clayton. If it does not destroy the liberty of the citizen using 
liquor, how should it worry you? 

Mr. WiLDERMUTH. If it did not destroy the right of the person to 
the use of liquor — but from my point of view it does most emphatic- 
ally destroy that. That is why I am worrving. 

Mr. Palmer. Please point out the provision of the bill. 

Mr. WiLDERMUTH. I iiave already. "Use, consumption, and stor- 
age." The prohibiting a common carrier by bringing liquor from 
one State to another. It prohibits the very State where the goods are 
manufactured and taken on board to carry them to another State from 
making a contract. 

Mr. LiTTLEFiELD. What is the language? 

Mr. WiLDERMUTH. In section 2 you will find that all corporations 
and persons engaged in interstate commerce shall, as to any shipment 
or transportation of fermented liquors, and so forth, be subject to all 
laws and police regulations with reference to such liquors or liquids 
or the shipment or transportation thereof. 

Mr. LiTTLEFiELD. Now, is it jrour conception as a lawyer that that 
language prohibits the importation from one State to another? 

Mr. WiLDERMUTH. I do most emphatically say 

Mr. LiTTLEFiELD. Docs that language do that? 



214 HEPBURN BILL. 

Mr. WiLDERMUTH. Yes; that language would prohibit the shipment, 
where there would be a State law passed to that effect. 

Mr. LiTTLEFiELD. That is another proposition. 

Mr. WiLDERMUTH. I predicated my statement upon that. I said 
where the proper laws were passed by the State this act would have 
that effect. 

Mr. GiLLETT, of California. Without that act they could not pass 
laws of that kind. 

Mr. W^iLDERMUTH. That is true. 

Mr. GiLLETT, of California. So they both work together. 

Mr. WiLDERMUTH. Ycs, sir; that is the idea. 

Mr. Palmer. Do you not think the States have a right to pass such 
laws as they please? 

Mr. WiLDERMUTH. Ycs; but the United States has no right to inter- 
fere and give them any power which would leave it to their discretion 
to enforce. 

Mr. LiTTLEFiELD. That they may or may not enforce? Do you 
mean that they can not enforce, or that they will not enforce? 

Mr. WiLDERMUTH. It is left to their own pleasure as to whether they 
will enforce it or not. 

Mr. LiTTLEFiELD. I Understand your proposition to be that it could 
not be enforced, or do you not mean that ? 

Mr. W^iLDERMUTH. I askcd you how you could enforce that law. 

Mr. Henry. Which law; this law or the law that is in some pro- 
hibition State? 

Mr* WiLDERMUTH. A Secondary law passed by a State taking the 
benefit of this Hepburn law. 

Mr. Henry. You do not mean the enforcement of this law? 

Mr. WiLDERMUTH. Not this law itself, but in conjunction with the 
State law. 

Mr. GiLLETT, of California. Then this law is of no effect unless 
you get some kind of a State law passed to enforce it? 

Mr. WiLDERMUTH. That is my view. 

Mr. GiLLETT, of California. Your idea is that no law passed by any 
State can be enforced? 

Mr. WiLDERMUTH. YcS. 

Mr. GiLLETT, of California. How is it going to embarrass you, 
then ? 

Mr. WiLDERMUTH. If there is a State law passed, then that State — 
where they take the benefit of this law that is now before 3^ou to be 
passed — that can prohibit any liquor from being brought into that 
State where it is prescribed. 

Mr. LiTTLEFiELD. Is that the statute that you say can not be 
enforced, or do you think it can be? 

Mr. WiLDERMUTH. Under those facts it ms,y be enforced. 1 will 
not say it can not, nor 1 will not say it won't be, but I will say that it 
is an open question of whether it will or not. But I am satisfied of 
one thing, that it won't be long after it is passed, if it is brought 
before the United States Supreme Court, that it will be declared 
unconstitutional. 

Mr. Clayton. We would like to hear from you on that. 

Mr. Henry. Before you get to that your contention is that prohi- 
bition does not prohibit? 

Mr. WiLDERMUTH. It docs not and never will. 



HEPBURN BILL. 215 

The first subject to which your attention is called is that of the 
right of the common carrier to deliver alcoholic drinks brought from 
one State to another where its sale is prohibited by law. 

That right was decided by the Supreme Court of the United States 
in the case of Leisy v. Harden (135 U. S, 100). The bills now before 
you, aim to practically nullify this decision of our highest Court. 
Aside from this legal phrase, there is a principle involved which strikes 
at the very foundation of our personal liberties. No law should be 
made which will result in a widespread dictum as to what we shall 
drink. It is a dangerous proceeding, whether in a republic or mon- 
archy, to abridge the personal privileges assured to us by existing and 
rational federal law, and any attempt to create or enforce any restric- 
tion binding upon all the States for the benefit of a few States who 
have passed, or may pass, prohibitory laws is unwise. 

The still voice of tne citizens of two-thirds of the sovereign States 
of this glorious Union who strongly oppose the passage of the bills 
now before you may yet be heard in a voice of thunder. Like Ban- 
quo's ghost, the liquor question will not down nor can any unwise or 
unjust legislation suppress it. The citizen still has the right to manu- 
facture liquors for nis own consumption which no law can gainsay 
him. Liquor should not be made a subject of Federal legislation 
between the States, each State has plenary power to deal with its 
proper regulation through its police powers without any Federal inter- 
ference, and I respectfully contend, without doubt, that the bills now 
before you, if passed, will be declared unconstitutional. 

First, because it is an illegal delegation of Federal power to the 
police powers of a State, which may or may not be enforced in differ- 
ent ways in the various States subject to the laws of each State. 
Second, that it has all the marks of special or class legislation which 
may be enforced in one State and not in another, and to deprive a citi- 
zen of a prohibition State his privilege to import liquor for the use of 
himself and family is a serious abridgement of his natural rights which 
shall forever remain inviolable, bj^ this or any other such vicious 
legislation. 

Once legislation of this kind is passed at the behest and importuni- 
ties of those in whom there still survives the spirit of intolerance that 
burnt weak unfortunates at the stake and branded others with the 
scarlet letter, heaven knows where it will end. 

Doctor Parkhurst, some twenty years ago, conducted in New York 
City one of the most rabid crusades ever undertaken against liquor 
and vice, yet less than one year ago the Doctor, a much older and wiser 
man from his experience, publicly advocated the opening of concert 
gardens on Sundays and their right to sell wine and beer on that day. 

Gentlemen, it is a prohibition State that is responsible for creating 
Carrie Nation and '' Sockless Jerry," and statistics show that they are 
the least progressive. Is there any wonder that they show a decrease in 
population ? They are good places to stay away, and if there, to leave. 
When a State enacts prohibitory laws it can go no f urtiier, nor can an 
unwarranted and unconstitutional Federal enactment give that State 
any greater exercise of police power by any arbitrary and unlawful 
meddling with or restrictions imposed upon the common carriers of 
the United States. The liquor question was fully and ably discussed 
by Judge Lumpkin in volume 18, Georgia Reports, page 601, and is of 
great interest. 



216 HEPBURN BILL. 

We should be wise enough to see that the usages of centuries are 
not to be uprooted in a day. Her counselors have profited by the les- 
sons of wisdom drawn from the experience of the past. They have 
learned that the imposition of high duties does not destroy the appe- 
tite for spirits, and that no vigilance on the part of oflBcers or severity 
of the laws can eradicate a custom so long indulged and universally 
practiced, and that the real effect of all ultra measures has been U> 
continue the supply through illicit channels and thus to superadd the 
meanness of concealment to the vice of drunkenness. They have 
studied the history and results of a premature effort made by the 
British Government as early as 1736 to put a total stop to the further 
use of spirituous liquors, except for medicinal, manufacturing, and 
mechanical pui-poses. 

During the latter part of the reign of George I, and the earliest 
part of that of George II, gin-drinking had become exceedingly pre- 
valent. And the evils resulting from the multiplication of grog-shops, 
were denounced from the pulpit and in the presentmente of grand 

{'uries, as pregnant with tne most destructive consequences to the 
lealth and morals of the conmiunity. At length, ministers determine 
to depress the mischief effectually. They passed an act, the preamble 
of which recites, that ''whereas the drinsing of spirituous liquors, 
or strong water, is become very common, and especially among the 
lower and inferior rank, the constant and excessive use of which tends- 
greatly to the destruction of their health, rendering them unfit for 
useful labor and business, debauching their morals and inciting them 
to perpetrate all voices. And the ill consequences of the excessive 
use oi such liquors are not confined to the present generation, but 
extend to future ages and tend to the destruction and ruin of this 
kingdom." 

A duty of twenty shillings a gallon was laid on spirits, exclusive of 
a heavy license duty on retailers. Extraordinary encouragements 
were held out to informers; and a fine of 10() pounds was ordered ta 
be rigorously exacted from those who were engaged in it, even though, 
inadvertence should vend the smallest quantity of spirits which had 
not paid the full duty. 

Here was statute sufficiently stringent to satisfy the most clamorous 
friend of legislation; and that, too, adopted by a monarchy, which 
depends upon force rather than public opinion for the execution of 
its laws. But instead of the anticipated effects, it produced those 
directly opposite. The respectable and conscientious dealers with- 
drew from a trade proscribed by Parliament, so that the business fell 
almost entirely into the hands of the lowest and most profligate char- 
acters, who, as they had nothing to lose either in character or estate^ 
were not deterred by penalties from breaking through all the provis- 
ions of the act. 

The masses, say the annalists of that period, having in this as in all 
similar cases espoused the cause of the contraband dealers (and no 
wonder that they should, feeling as they do, that all such legislation 
operates practically, if not so intended, as an odious discrimination 
against them), the public officers were openly assaulted in the streets 
of London and other great towns; informers were hunted down like 
wild beasts, and drunkenness, disorders, and crimes increased with 
frightful rapidity. '' Within two years of the passing of the act,'^ 
says Tindal, " it became odious and contemptible, and policy as well 



HEPBURN BILL. 217 

as humanity forced the commissioners of excise to mitigate the penal- 
ties." (Continuation of Rapin, vol. 8, p. 358, ed. 1759.) 

The same historian mentions (ib. , p. 390) that during the two years 
in question no fewer than 12,000 persons were convicted for offenses 
connected with the sale of ardent spirits. But no exertion on the part 
of magistrates and ministers could stem the popular current. And 
according to a statement made by the Earl of Cholmandeley in the 
House of Lords (Timberland's Debates in the House of Lords, vol. 8, 
p. 388), it appears that at the very moment when the sale of spirits 
was forbidden as illegal, and every possible exertion made to prevent 
and suppress it, upward of seven millions of gallons were annually 
consumed in the city of London alone, and parts immediately adjacent 
thereto. Finally, government gave up the unequal struggle, and in 
1742 repealed the high prohibitory duties, notwithstanding the vehe- 
ment opposition of the bishops and many of the peers, who exhausted, 
we are told, all their rhetoric in depicting the ruinous consequences 
that would follow. 

To these declarations it was unanswerably replied that, whatever 
the evils of the practice might be, it was impossible to repress them 
by prohibitory enactments until there was laid, broad and deep, in 
the mental and moral improvement of the people, a foundation to 
sustain them, and that any premature attempt to do so would be pro- 
ductive of far greater evils than had ever resulted or could be expected 
to result from the greatest abuse of spirits. 

Similar efforts were made at a later day to arrest the progress of 
demoralization in Ireland and Scotland resulting from the same cause, 
which ended equally unsuccessful and unsatisfactorily. 

To follow out logically section 2 of the proposed act it would mean 
that if a State passed a law that liquor delivered within its limits by a 
common carrier should be liable to seizure and destruction, and that 
same State having already prohibited the manufacture of liquor, then 
even the hospitals, druggists, and physicians of that State would be 
without spiritus fermentii for medicinal purposes; for if it is not 
manufactured within the State it necessarily must be brought therein 
and by a common carrier. 

It follows that all liquor would under the State law be seized and 
destroyed upon its delivery within the State, no matter to whom it 
may be consigned. A law should be consistently enforced, or repealed, 
and a proposed law of this kind should never be passed. Would or 
could there be a legal differentiation as to its use wnen once delivered 
in the State? 

Why should Federal legislation be dragged below the level of a law 
of a State, to be made a creature depending for its enforcement or 
nonenforcementupon the whim of a State legislature? Mr. Dinwiddle 
admits that it will apply only to prohibition States, of which there 
are but few in this Union. What he means is, that you pass this bill 
presumably to help the prohibitory laws of those States; but, once 
made a law, what is to prevent Missouri or any other State from 
excluding the liquors manufactured in another State from its territory, 
even though it allows liquors to be manufactured and sold within its 
own boundary? Why did Congress in its wisdom pass the interstate- 
commerce act? Surely not to afterwards repeal in part or qualify it 
so as to exclude or discriminate against any one or more articles of 
commerce from which both the United States and the States derive 
revenue. 



218 HEPBURN BILL. 

He further quotes as an alleged precedent that nitro-gl3^eeriije was 
excluded; even so, the comparison is ridiculous. In his over-zealous 
mind he may be convinced that liquor and dynamite are one and the 
same thing: he places them on a par. Legislation regarding explo- 
sives is necessary to protect life and property, and does not take away 
the personal liberty of citizens; and he quotes from States who do not 
desire to deprive its residents of importing liquor for their own use. 
In my opinion he does know, or should know, that this is the very 
purpose of the proposed law, which unquestionably would result in one 
State having the power to prohibit another State from shipping liquor 
within its limits for the use of any of its citizens — aye, even for their 
personal use. 

And one word further. When a man like Mr. Crafts, presumably 
representing many church organizations (I will not say Christian), 
stands before your honorable committee and denounces a body of men 
and women of whom he knows nothing, as anarchists, his words are 
not worthy of consideration; he is an anarchist at heart and has not 
the spirit of the lowly Nazarene in his breast. 

STATEMENT OF ME. FEANK HiaOUTS. 

Mr. HiGGiNS. Mr. Chairman, and gentleman of the committee, I 
deem it a privilege and an honor to speak before this honorable com- 
mittee on this question, and I will not occupy very much of your val- 
uable time. 

I come from one of the States which helped to ratify the Federal Con- 
stitution — the State of Maryland- one of the original thirteen States, 
and I believe one of your honorable committee has the honor to be 
from the State of Mar^^and. 

Now, gentlemen, I am not going to take up much of your time, but 
I do want to impress upon you the real vital issue that is before you, 
and that is the question of the relation of the Federal Government to 
the States. The Supreme Court of the United States has declared 
time and time again — and, by the way, one of the decisions was ren- 
dered by the honorable Chief Justice Taney of Maryland, the State 
that I come from, and they have decided time and time again that it is 
within the police power of the States to regulate the question of the 
sale and the disposition of alcoholic liquors within the States; that it is 
peculiarly within the province of the State to pass laws to regulate it 
or control it, or to absolutely prohibit the sale, manufacture, transpor- 
tation and importation of alcoholic liquors. 

It was never within the minds of the f ramers of the Federal Consti- 
tution, in my humble opinion — this condition of affairs that presents 
itself to-day in our Republic. They had at that time free whiskey. 
They had no internal-revenue laws taxing the sale of distilled or fer- 
mented liquors, and therefore they could not have had this question — 
be it academic question, legal, or what not — within their minds, because 
conditions that now present themselves to you, and are before the 
people of this countiy, could not have been in their minds. They did 
not entertain or anticipate any such condition of affairs that is before 
you to-da3\ 

Mr. GiLLETT of California. What evidence have you of that fact — 
that that is so? 

Mr. HiGGiNS. History will show it to you if you will follow care- 



HEPBURN BILL. 219 

fully the passage of laws and the conditions that now present themselves 
to you, that are before you to-day. They could not have anticipated 
or had in their minds this question that is before you to-day. What 
relation exists between the Federal Government and the State? Has 
Congress a right — as one member here has stated, is it now time for 
Congress to take jurisdiction in this matter and give back to the States 
what the States gave up to the Federal Government at that time, the 
control of interstate commerce? 

Mr. GiLLETT of California. Did they do that without the absolute 
consent of all the States? 

Mr. HiGGiNS. I think it was ratified b}^ the two-thirds, or the three- 
fourths majority which was necessary to ratify the Constitution, and I 
am sure that Maryland was one of them; that gave up to the Federal 
Government the control of interstate commerce or commerce between 
the States; but they never contemplated that Congress should not reg- 
ulate and control or give back, as it were, if you please, to the States 
the right to legislate in regard to whatever is conducive or delete- 
rious to the health, or morals, or may become a nuisance in the States. 

This is the question that is before you today. It seems to me that 
is the question for Congress to decide; whether they shall prohibit, or 
give the States the full exercise of this provision; should give the 
States the right to carry into effect and give full effect to their prohib- 
itive measures. 

There is no doubt that the States have a right to regulate this mat- 
ter, and the}^ have in a great many States. Now, in Maryland, we have 
a condition of affairs like this. That over one-half the counties have a 
local prohibition measure, and, as has been said here to-day, you can 
not enforce such laws. I tell you. gentlemen of the committee and the 
honorable people assembled here, that the enforcement of law creates 
a healthy public sentiment on this question; that the way to get public 
sentiment on a moral or academic question, if you please, is to enforce 
the laws that we have, and 3^ou can see by the passage of this law it 
will aid and help the prohibition States or the States that have prohib- 
itory measures to more nearly enforce their local laws. 

What right have outside influences like the great brewing influences 
of the country that have been represented here to-day and have spoken, 
what right have they to come here and say how we shall govern our 
internal affairs, how we shall pass laws regulating our control of the 
deleterious and harmful drugs, how we shall pass Taws, and then seek, 
under the guise of interstate commerce, to nullify them ? That is the 
question that presents itself to you. Has Congress a right to take a 
step forwards Whatever you do, gentlemen, on this question, gen- 
tlemen, will be in the trend of public opinion and the healthy public 
sentiment in this country. It is tending that way, and you will be 
responsible, and will have to answer to the bar of conscience and to 
God. Whatever is best in the interest of humanity and the enforce- 
ment of law, of good, healthy, moral laws, is in the right direction. 

I thank your honorable committee now for this privilege, and hope 
you will favorably report the bill, so that Congress shall discuss the 
matter on the floor oi the House. 



220 HEPBURN BILL. 



Friday, March 4-^ 1904- 
The committee met at 10.45 a. m., Hon. John J. Jenkins in the chair. 
The Chairman. We are ready to proceed. 

Mr. Bartholdt. By agreement or the other side I take pleasure in 
introducing to you first Mr. Guter, of Newark, N. J. 
The Chairman. I understand that these gentlemen will talk briefly. 
Mr. Bartholdt. Yes, sir. 

STATEMENT OF MB. NOAH GTJTEE, OF NEWAEK, N. J. 

Mr. Guter. Mr. Chairman and gentlemen of the committee, I wish 
to state that I do not represent any brewing or liquor interest; I don't 
represent any organization, I am a plain citizen from the State of New 
Jersey, representing 30,000 citizens, all voters, who wish to protest 
through me against the bill which is proposed and is before your com- 
mittee now. 

It is not a question for us whether there is beer or liquor sold or 
beer or liquor transported from one State into another; it is the 
principle involved in this bill which we protest against. 

We claim to be good, law-abiding citizens of this country, able to 
control our wishes and desires for anything, and do not see the neces- 
sity to make any prohibitory laws for us — ^f or the American man. We 
do desire to state to this committee that from our knowledge of pro- 
hibition laws that prohibition has created more lawbreakers than any 
other laws which have been placed upon the statute books 6f this great 
land. The question has been asked during this hearing several times, 
Why is it not possible for the States in which prohibition laws exist 
to enforce those laws? We have not had one answer to tell us why 
the States can not enforce those laws. I have been through the 
prohibition States. 

1 have been through Iowa and I have seen more beer and liquor sold 
openly over the bar contrary to law in the State of Iowa than in any 
other State in the Union, and I have asked the question, ''How is it? 
I believe I am in a prohibition State and yet I see you are not molested 
any more than we are in New Jersey." Well, the answer I got was 
this, "You know this is a political question and we want to see either 
side touch this question; they know very well that the majority of the 
people of this State or any other State are against prohibition and that 
these laws are placed on the statute books by the indifference of the 
people against prohibition, and when they are placed there they are 
used for a certain purpose — not to stop the drinking or the selling of 
liquors, but for other purposes," and it would be necessary to send 
into these States and then it is easy enough to find out what the pro- 
hibition laws are put on the statute books for. 

Mr. Clayton. What is that other purpose; did you ascertain that? 

Mr. Guter. To keep the balance of power, if I may call it so. 

Mr. Clayton. How ? I would like to know the modus operandi 
of it. 

Mr. Guter. If you wish to know the modus operandi I guess you 
have been longer in public life than I have. 

Mr. Clayton. I am not testifying; you are. 



HEPBUBN BILL. 221 

Mr. GuTER. And if the committee wishes to ask me any questions 
I am ready when I get through. 
The Chairman. Your time has expired. 
Mr. GuTER. All right. Thank you, gentlemen. 

STATEMENT OF ME. JACOS L. SIELEE OF INDIANAPOLIS, REF- 
EESENTING THE GEEMAN-AMEBICAN ALLIANCE OF INDIANA. 

Mr. BiELER. Mr. Chairman and gentlemen of the committee, I thank 
you for the opportunity which you have afforded me to present briefly 
the sentiments of the^ German-American Alliance of the State of 
Indiana in opposition to what is commonly known as the Hepburn- 
Dolliver bill. This Alliance represents 1,750,000 people in the United 
States, and in the State of Indiana has 45 societies and a membership of 
over 5,000. 

I am not here to argue before the members of this committee the 
constitutionality of the proposed legislation. It would be presump- 
tion to make any suggestions along that line to the members of this 
Judiciary Committee, composed, as it is, of eminent lawyers. Besides, 
it is not for me, a layman, to raise a legal question before you. I am 
speaking purely from the standpoint of the moral and individual 
features connected with the proposed bill. 

It seems to me that an element of our population so strong and rep- 
resentative as the German-American Alliance, is entitled to come 
before this committee and make known, though its representatives, 
the sentiments which it entertains concerning this bill, if it should 
become a law. They hold that it would be an infringement of their 
rights and they deny the right of even a majority of the people to 
dictate to a minority in matters regarding purely personal and indi- 
vidual rights. 

In other words, while everybody concedes that on matters which 
generally affect the prosperity of the country the majority should rule, 
the majority has no right to say to the minority what that minority 
shall eat and drink, or now thev shall exercise purely individual rights. 
This legislation is, to my mind, sumptuarj^, and, as happens in the case 
of most laws, of which it is a forecast, it would probably fail to be 
enforced. It is one of the principles of German- American citizenship 
to respect law and order, and they teach their children and their neigh- 
bors, Dy precept and example, a wholesome regard for the laws. For 
this reason they believe that any legislation which can not be strictly 
enforced and which results in irreverence for law and disregard of the 
rules of civil government, is not calculated to elevate citizenship, and 
in itself defeats the real objects of the law. 

The bill is obnoxious because it is an abridgement of personal liberty. 
We have always held that these moral reforms can best be worked out 
through education and other civilizing influences. So long as the 
exercise of purely personal rights does not become a public menace, 
nor offensive to society generally , there is no good reason, and, in fact, 
no authority, for legislation denying these rights. The efforts to 
accomplish by legislation what should be left to education and civiliza- 
tion has resulted, as is well known in most of the prohibition States, 
in evasion of laws, travesties upon justice, and ultimately in the repeal 
of the so-called moral legislation. 

I am not representing a purely local sentiment in coming before 



222 HEPBURN BILL. 

your committee. You have already heard from the president of our 
Alliance and he has truthfully stated to you that over 6,000 associa- 
tions and societies have petitioned Congress not to pass this bill. 

The membership of this societ3'^ is representative of the German- 
American citizenship as a class. May I, although a German- American, 
be permitted to say at this time that there is no element of our citi- 
zenship which has done more to uphold high national standards and 
give a stable character to our citizenship than the Germans. They are 
industrious, frugal, and law abiding. They have fought in the wars 
of the country and upheld the fla^ in times of national peril. They 
are thrifty, and in any community in which they form an important 
part they build comfortable homes, meet their obligations to their 
fellow-men, and by their labor and adherence to the obligations of 
society and morality make for the prosperity and welfare of the 
country. 

It seems to me that in view of these facts they are not asking too 
much when they ask Congress to keep hands off when pernicious 
legislation is proposed abridging their privileges and liberties as 
citizens. 

The bill is only one of a number of such pernicious measures. If 
passed, it will be the entering wedge for other legislation of more 
rigorous character. It is inconceivable that public sentiment would 
long sustain such laws, but it seems to me that the experience which 
the States have had concerning this class of legislation ought to cause 
Congress to hesitate and avoid the evil effects now, rather than to have 
to remedy them later. 

I have presented to your committee the sentiments of our society 
from the purely personal and social standpoint. I am not here to 
point out what effect such legislation might have on a business which 
contributes such an important proportion of our revenues, nor to 
raise a question as to whether this legislation would be in accord with 
the Federal Constitution. 

You have been unusually courteous to grant me this hearing, and I 
thank you for vour consideration and bespeak for our memorial that 
full and judicial consideration which characterizes legislators and men 
sufficiently emiment to sit in a committee of this high character. 

STATEMENT OF ME. ANDEEW AENS, OF NEW YOEK CITY. 

Mr. Arns: Mr. Chairman and gentlemen of this committee, I have 
the honor to represent the united German societies of the city of New 
York in opposition to the measure now before you under consideration. 

This organization is composed of about 150 different German- 
American societies, having a membership of over 50,000. We are all 
opposed to this measure. Our main reason is from the standpoint 
that laws should not be enacted which curtail the liberty of the 
inhabitants of this free land to receive ,and use for his own consump- 
tion what he pleases and deems good and beneficial for himself and 
his family. 

While I am not a lawyer, but a business man, I believe in the prin- 
ciple that the people are not made for the law, but that the law is made 
for the people. If, therefore, it behooves one State through influences, 
peculiar to the season and due to fanatacism, to enact laws restricting 
unnecessarily the liberties of its inhabitants, it does not in m}^ opinion 



HEPBURN BILL. 223 

follow that the individual is bound by that law in regulating his own 
diet or in preventing him from acquiring things which he chooses for 
his comforts. 

It was found practical in colonial times to burn women because it 
was asvserted that they were possessed of witchcraft. To-day such an 
idea is simply scouted as a fallacy, and anybody who would attempt to 
offer such legislation would be deemed a fit subject for a lunatic asy- 
lum. The same is true of the liquor question, because in many States 
were total-abstinence laws rigidly enforced they would be speedily 
repealed. 

It seems to me that the Congress should not lend its hand to help 
the temperance cause in this way. Temperance is a moral question, 
and can only be made practicable by conversion and not by legisla- 
tion. Christ said to his disciples to preach the gospel to those who 
would hear them, and those who would not hear them to leave them 
to their own fate. So here the cause of temperance is promoted by 
conversion and not by compulsion. 

My own experience, based on a long association and intercourse with 
liberal-minded people, is that by letting them have their own way in 
a reasonable manner in the drink problem the interests of the com- 
munity are better subserved than by total restriction. 

If one State, through obnoxious influences, is actuated to enact dif- 
ferent laws, the whole community of our liberal land should not be 
obliged to sufi'er by it, or stand by and tolerate the sufferings of those 
who are unfortunate enough to reside in that State. 

We could have brought here a half million signatures if we had had 
time. If that law would be enacted it would bring a million working- 
men out of work, would cause a large loss to legitimate business, and 
the United States would lose many millions of revenue. 

I hope that you will not give your vote and .voice for this bill. 
The eyes of the American people and of the whole world are fixed at 
this moment upon this committee, and I hope that you will do what a 
majority wish you to do. 

STATEMENT OF BE. FEEDEEICE WILLIAM STTJAET, OF SOSTON, 

MASS. 

Mr. Stuart. I am a physician from Boston. As a dispensary doc- 
tor and as overseer of the poor of Boston for seven and a half years, the 
last three years being chairman of the committee dealing with the poor 
of Boston, I believe I know something of this question, and that 1 can 
speak for not only the German-Americans, but the city generally from 
which I come. I believe that the intelligent patriotic thought on this 
matter is opposed to this bill, because, in the first place, it aoes attack 
personal liberty, not actually, but potentially, in that it enables States 
to attack it. 

We believe that the proposed law is not possible of being carried 
through. We are law-abiding citizens, and we will obey the law if it 
is passed, but there are many who will not; x>ublic sentiment is against 
it, and we do not think it is wise. In other words, we believe the 
speakeasy will continue just the same. We know in our charity work 
that pauperism, illegitimacy, crime, and all these things go hand in 
hand, and it is not scientific to say that the one sympton which an3'one 
observer can see is the cause of all this crime ana pauperism. We 



224 HEPBURN BILL. 

believe that children should be born right knd bred right, and heredity 
will tell. 

If I had the time I would like to place before you the statement of 
Mr. Jerome, of New York. 1 am sorrv I have not time. But I thank 
the gentlemen, and I want you to understand that I give my time as 
the overseer of the poor of Boston for humanity's sake — I am not paid. 
I give my time because I believe in what I thmk and say, and I want 
to perform some service for humanity. 

Mr. DiNWiDDiE. At this time I would like to introduce Mr. Joshua 
L. Baily, who has been the president of the National Temperance 
Society of New York City and who will occupy 15 or 20 minutes of 
time. Mr. Baily was referred to here yesterday. 

STATEMENT OF ME. JOSHUA L. BAILY, MEBCHANT OF PHILA- 
DELPHIA, FOEMEELY PEESIDENT OF THE NATIONAL TEM- 
PEEANCE SOCIETY AND EEPEESENTING THAT SOCIETY BY 
EEQTJEST OF THE BOAED OF MANAGEES. 

Mr. Chairman and gentlemen of the committee: I was in attendance 
here all yesterday, and an attentive listener. 

Although a good deal of interesting matter was laid before us, a 
very large portion of it seemed to me to have little relation to the 
real question at issue. 1 thought many statements made were mis- 
leading, and some of them very inaccurate and calculated to influence 
the committee adversely to the bill, and were made with that intent. 
And, however irrelevant, it has seemed to me that those misleadings 
and inaccuracies ou^ht not to be passed by without correction. To 
attempt this correction where it appears to be most needed will be my 
first purpose. 

At the morning session four clergymen appeared in the interest of 
the opponents of the bill (all of them, I think, representing German 
congregations), but Instead of directing their remarks to the clear 
purpose of the bill, they occupied themselves chiefly in denunciations 
of prohibition, both as a principle and a practice, ana openly advocated 
the use of intoxicating drinks. 

I have great respect for ministers of the Gospel, and it is not pleas- 
ant to me to take exception to their utterances; but I think it will not 
do to let pass without comment and correction some things said by 
them. 

The first of the reverend gentlemen who spoke quoted the Bible as 
authority for the use of wines and strong drinks, and claimed that all 
through the Old Testament Scriptures such use was commended and 
even enjoined, but he failed to tell us that there are quite as many 
passages wherein the use of wines and strong drinks is condemned and 
prohibited, and in one place the use is described as having such dan- 
gerous qualities that we are not even to look upon it. This seeming- 
inconsistency is reconciled when we remember tnat two very different 
kinds of wine were in use in Bible times — one the unfermented juice 
of the grape, which was commended as beneficial, and the other the 
fermented juice, or "strong drink," which was condemned as harmful. 
The reverend speaker proceeded to call his witnesses to prove the pro- 
priety and utility of wine drinking. His first witness was the patri- 
arch Noah. It seems to me that in the selection of this witness he was 
especially unfortunate, for I think we will all admit that the wine 
drinking of Noah is one of the saddest incidents in sacred history. 



HEPBURN BILL. 225 

We re«d that Noah planted a vineyard and drank of the wine thereof 
and was drunken, and he lay uncovered in his tent and two of his sons 
took a garment and went backward and covered their father's naked- 
ness, and there it appears they allowed him to remain while he sobered 
up. Noah was one of the most illustrious men of Bible times. It is 
said of him that he "walked with God," and was a ''man after God's 
own heart." For a hundred and twenty years while the ark was build- 
ing he bore without flinching the frowns and scoffs and ridicule of a 
wicked world, but the insidious power of alcohol made this strong 
man as weak and powerless as a babe and left him lying in his tent a 
shame to his family and an object lesson to all future ages, a warning 
that let a man's position be ever so exalted, even the mightiest of the 
mighty, he has need to fear and to avoid the allurements of the intoxi- 
cating cup. 

As his next witneiss the speaker called on St. Paul, quoting what he 
said to Timothy about taking a little wine for his ''stomach's sake," 
and his "often infirmities." Now Timothy was only recommended to 
use wine medicinally not as a beverage and no prohibitionist need 
take issue with St. Paul on that. But our clergyman could have more 
fairly represented St. Paul had he quoted what the Apostle said on 
another occasion: "It is good neither to eat flesh nor to drink wine 
nor anything whereby thy brother is offended or is made weak." 

Next our clerical brother adduced the example of Christ, who made 
wine out of water at the marriage in Cana of Galilee. There is no 
evidence that this was intoxicating wine, nor is it likely that it was 
intoxicating, as it was used on the day on which it was made, no time 
having been allowed for fermentation. Besides this, it was made out 
of water; no other ingredient. The most pronounced prohibitionist 
would hardly be likely to object to that kind of wine. 

Mr. Clayton. Do not you think that Christ could have made fer- 
mented wine as well ? 

Mr. Baily. I can only say that with Him all things were possible, 
but I have confined myself only to what is in evidence. 

Another of the clerical gentlemen who spoke yesterday morning 
claimed that the prohibitory laws prohibited the use of wine for sac- 
ramental purposes. I do not think he intended to misrepresent, but 
he was certainly mistaken. The use of wine for sacramental purposes 
is especially provided for in most prohibitory laws and is denied in 
none. 

The same clergyman proposed an amendment or proviso for this 
bill to the effect "that there should be no interference with the private 
or family use of intoxicating liquors." It seems to me that, even were 
it within the province of Congress to make such a provision, it is 
uncalled for, inasmuch as there is no law on the statute books of any 
State prohibiting the private or family or any other use of intoxicat- 
ing drinks. The law does not deal with the use but with the traffic 
only. 

A gentleman who told us he was a brewer, but who claimed never to 
have made a speech before, proved himself an able advocate of the 
business interest he represented. He told us that prohibition had been 
a failure everywhere. Some of us think this claim can not be sus- 
tained. True, prohibition is not everywhere the eminent success its 
friends and advocates would like to see; but wherever it is a failure it 
is largely because of the impediments to its execution which are thrown 

H B— 04 15 



226 HEPBURN BILL. 

in the wav by the Federal Government, first, bj^ the issue of tax receipts 
which, wfcile they do not actually license the sale of liauors, are looked 
upon in divers cases as a quasi E^ederal authoritv; ana, secondly, Dro- 
hibition is often a failure by reason of the impediments which the Hep- 
burn bill seeks to remove. 

Representative Scott made a very candid statement yesterday as to 
the extent to which prohibition is successful in Kansas. I am able to 
speak for the State of Maine, where I had a summer residence for 
months at a time, through several years, and where some business 
interests took me into diflferent parts of the State and afforded no 
small opportunity for observation. Notwithstanding the limited 
enforcement in some of the large cities, there are many towns and 
large sections of Maine where the prohibitory^ law is- well observed 
ana drunkenness is rare. It must have been noticed by you, Mr. 
Chairman and gentlemen, that the opposition to this bill, so far as it 
appeared y^esterday, came from German-Americans, or those who pro- 
fessed to speak for them. 

I have some acquaintance with German- Americans in my native 
State (Pennsylvania), and I know something about the German settlers 
in Iowa, having traveled through many sections of that State as far 
back as 1853; and quite frequentl}^ since then, and I may also claim no 
inconsiderable knowledge of the conditions and affairs of Kansas, 
having been a member of the Kansas Emigrant Aid Society, which 
put me in close touch with the affairs of Kansas when it was a Terri- 
tory some years before the opening of the civil war, a touch which I 
have had occasion to maintain to this time. And I am quite prepared 
to say to you that those who spoke yesterday as German-Americans, 
however well and truthfully they may have represented a large por- 
tion of those who are recognized under this designation, do not repre- 
sent all the German-Americans by any means. 

There are men and women of German blood and language, in Iowa 
and Kansas, who found out that the price of a keg of beer would buy an 
acre of land — the best land in either of those States, an acre that would 
produce seventy bushels of corn or thirty bushels of wheat, and many 
of them were not slow to decide which was the better investment. It 
must not be forgotten that German influence and German votes largely^ 
contributed to the adoption of the constitutional prohibition in Kansas 
in 1880. 

Is it opportune, Mr. Chairman, to put German-Americans forward 
as advocates of the use of intoxicating liquors at the very time that 
Germans of the Fatherland are doing so much to get rid of them? 
One speaker yesterday, in referring to the beer drinking customs of 
the German people claimed that there was very little drunkenness 
among them, and still another speaker claimed that there was none. 

A traveler who spends his time in the cathedrals, palaces, and art 
galleries may see very little drunkenness, but let him go into the 
smaller streets and byways, and into the slum districts, for every city 
has its slum district, and let him walk through even the principal 
streets at night, and he will see plenty of drunkenness. It is a fact too 
well known to be contradicted that in Germany, Switzerland, and 
Austria, in France and Belgium also, drunkenness is greatly on the 
increase, and there is an appalling increase in insanity due to alcohol- 
ism. It has been found necessary to erect several additional insane 
asylums and to enlarge some already built to accommodate the increased 



HEPBURN BILL. 227 

number of victims. How to abate these spreading evils is now chal- 
lenging the earnest attention and skill of philanthropists, scientists, 
and statesmen throughout the countries of central Europe. So 
rapidly has this movement, this sense of danger spread, that there are 
already several hundred total abstinence societies in Germany, Bel- 
gium, Holland, Switzerland, Austria, and France. 

In April, 1901, an international temperance congress was held in 
Vienna, at which there were in attendance delegates from every nation 
in Europe, and last year another congress of like character was held 
at Bremen. At both of these congresses there were in attendance 
college presidents and professors, doctprs of law, divinity, and medi- 
cine, scientists, and statesmen, the most eminent men of the respective 
nations represented in the congress, and total abstinence, restrictive 
legislation, and scientific temperance instruction in the public schools 
were the leading topics under consideration. Permit me just here to 
call attention to the distinguished surgeon. Doctor Lorenz, who lately 
visited this country, and who has set his seal to the utility and virtue 
of total abstinence as a splendid example to his countrymen. 

Considering all this, is it any time for us, representing as we claim 
the foremost Government in the world, to take any backward step? 
But let me ask why is it, Mr. Chairman and gentlemen, that opposi- 
tion to this bill appears to come chiefly from one class only of our 
citizens ? Is there no one to speak for the iz-^^A- Americans, the Scotch, 
or the English? No one will deny that the German-Americans are 
among our best citizens; by their industry, energy, and thrift they 
have contributed their full share to the wealth and prosperity of the 
country. But I do not think that those who have spoken for them 
here have done them good service by giving their beer drinking 
customs such undue prominence and demanding that the indulgence 
of these customs must be provided for even at the sacrifice and peril 
of the larger and more important interests of the country at large. 

There flows in these veins the commingled blood of several nation- 
alities. No one of them asks for any special privileges. The 
different molecules flow together cordially and loyally, content with 
the larger privilege of being American. I believe that you will agree 
with me that in legislation we should have in view no class or clan or 
old-world distinctions, but the laws should conserve and protect alike 
the welfare of every citizen. 

As to the legal points involved in this bill, I will not venture to 
speak. You have already listened to those whose legal knowledge 
entitles them to your hearing. It would be presumptuous for me to 
add anything; but this much from a layman may not be out of place. 
The bill appeals to me on account of its reasonableness. In very 
direct language, not, it seems to me, capable of any misunderstand- 
ing, the bill removes the chief obstacle which now stands in the way 
of the execution of State laws relating to the liquor traffic. 

A gentleman supposed to be learned in the law told us yesterday 
that, should this bill be enacted, it would be appealed to the Supreme 
Court and declared unconstitutional. We were told also — and this 
was the only objection urged by one of the speakers — that the law 
could not be enforced. And we were told also that the law would be 
evaded. Of this last I have no doubt. Is there any law on any 
statute book touching the liquor traffic which the trade has not tried 
to evade? That some, at least, of the brewers and distillers are pre- 



228 HEPBURN BILL. 

pared to resort even to bribery and corruption in evading the laws 
was shown by the circular of certain Kentucky distillers which was 
read to us yesterday. 

And there can hardly be a doubt that should this bill become a law 
every device that human ingenuity can invent will be resoi^ted to 
to evade and obstruct its execution. But this should be no reason for 
disproving the bill. Those whom I have the honor to represent are 
earnestly in favor of its provisions, and I join with them m the hope 
that you will report it to the House of Representatives with a favora- 
ble recommendation. I believe that if enacted it will create and 
encourage greater respect for law generall}'^ — one of the great needs 
of our time — and will be especially helpful in many States and com- 
munities where the present anomalous position of the Federal Govern- 
ment invites law defiance. 

Mr. DiNWiDDiE. Mr. Chairman, there are two other gentlemen 1 
would like you to hear. At this point I will introduce Doctor Wilson 
of the Methodist Episcopal Church. 

STATEMENT OF BEY. L. B. WILSON. 

Mr. Wilson, Mr. Chairman, I do not represent the permanent 
committee of the Methodist Episcopal Church oflScially, I jnay say, 
but I am sure that the views that 1 mav express have the indorsement 
of the membership of the Methodist Episcopal Church, which at this 
time numbers at least 3,000,000 people. 

The time allowed me is so brief that I shall venture to suggest sim- 
ply a single view of the case. It is this. 

The question is not a question as to the relative merit of beer or 
whisky; it is not a question as to the advantage or disadvantage in the 
use of any alcoholic liquor. As 1 understand it, it is simply a ques- 
tion as to whether or not a State shall be allowed to exercise its own 
authority in the maintenance of police regulations within that State? 

Now, Mr. Chairman, I suggest simply this consideration, that the 
laws of the States that are immediately and directly concerned with 
the proposed legislation express the moral sentiments of those States. 
It is to be borne in mind that in the expression of that moral senti- 
ment the citizenship of these respective States is willing to forego the 
commercial advantage accruing to that citizenship in the fostering of 
the traffic in strong drink. 

Now, it seems to me only fair, Mr. Chairman, that if any State, in 
the rightful exercise of its authority to promulgate and execute police 
regulations, is willing to forego, so far as its own citizens are con- 
cerned, the commercial advanteges coming from such a traffic, that it 
is no hardship to the citizens of any other State, if they are obliged to 
conform to the same statutes precisely, and if no man in the SSite of 
Iowa has the right to engage in the traffic in strong drink, why should 
a citizen of the State of New Jersey or of New York claim that right, 
Mr. Chairman? 

It seems to me that in the adoption of high moral sentiments, and in 
the crystallization of such moral sentiment on the part of the individual 
State, this country, that has always assumed to be broader and higher 
in the level of its thinking than any. of the individual States constitut- 
ing its sisterhood, should certainly not weaken the force of the moral 
sentiment of each State, but should lend itself to the execution, the 



HEPBURN BILL. 229 

rightful execution, of the laws which each State has placed upon its 
statute books. 

I have but a moment and I can not further enter into a discussion of 
the subject. 

Mr. DiNwiDDiE. I think possibly we have a few moments left, and 
Mr. Arthur Stabler, of Montgomery County, Md., desires to be heard, 
in view of the legislation in that county, and I will let him have the 
balance of the time. 

STATEMENT OF ME. AETpUE STASLEE, OF SANDY SFEINGS, MD. 

Mr. Stabler. Mr. Chairman and gentlemen of the committee, I am 
here representing the antisaloon league of Montgomery County, Mary- 
land. I have here a little history that leads up to the present situation 
in Montgomery County. I will not tire you with it, but will only read 
two or three pages of what I jotted down. 

Sandy Spring is an old Quaker settlement in Montgomery County, 
Maryland. The pioneer settler was James Brooke, who received a 
grant of 1,900 acres of land from Lord Baltimore in 1728. 

The present Friends meeting house was built in 1817, and in 1837, 
by special act of the Maryland legislature, a law was passed pro- 
hibiting the sale of intoxicating liquor within two (2) miles of the 
above-mentioned Friends meeting house. 

The next succeeding session, amended the law, by including all of 
that portion of Montgomery County within 2 miles of the Brookville 
Academj^. The two institutions were just 4 miles apart, thus making 
the prohibited locality 4 miles wide and 8 miles long. 

This was the nucleus and in and around this old settlement of Sandy 
Spring and Brookville the moral sentiment necessary to maintain a 
local option law was encouraged and fostered, until its example and 
precepts permeated our entire county, its benign influence was felt in 
every community. 

Onr people generally were plain and substantial farmers and turned 
their attention to raising grain and hay and stock raising and dairy 
farming. 

Our land responded to good treatment, and produced liberally, and 
our thrifty, industrious, and intelligent people gained in material 
prosperity, and with it grew the moral sentiment, and in 1876 our 
people elected a delegation to the lower branch of the legislature 
favorable to local option and petitions were liberally signed, and for- 
warded, until our senator had to heed the warning of over 7,000 of his 
constituents and help pass a law, allowing the voters of the county to 
decide the question. 

They did decide it, and out of a vote of about 5,000 passed at a 
Presidential election, the local option vote stood in round numbers 
3,300 for and 1,600 against the law. 

The people decided the question and they spoke in no uncertain 
sound, and they said ''saloons must go." 

There was no holding back, every election district in old Montgomery 
gave a good majority and the ''saloon did go." 

The tenoiptation though was great and there would be violations of 
the law. The speak easies, like the moonshiner's still, would make 
trouble, but the moral sentiment was behind the law, the conviction 
was there, and there has been no lack of courage. Our good women 



230 HEPBURN BILL. 

have helped to sustain our good men, and we are enforcing the law to 
the extent that the violators are coming into court and pleading 
guilty, with the hope of a smaller fine being imposed by our honorable 
court, and now for the first time we have a prosecuting attorney and 
sheriff both pledged to deal with the offenders and treat them as they 
do all other offenders and lawbreakers. ^ 

Now, gentlemen, we ask you to give us your indorsement and 
assistance, report favorably upon the Hebron bill, and such assistance 
with our law, as we expect it to be amended, will enable us to seize 
the goods when it comes into our midst, purchased and brought there 
to sell in violation of a law passed by the people. 

They are contraband goods and should be confiscated, and will be 
confiscated if we have the assistance and encouragement, furnished 
by the strong arm of the Government. 

Our people are trying to be good, and we want you to help— -it has 
been truly said it is a pleasure to help those who are trying to help 
themselves. 

We are not concerning ourselves about the constitutionality of the 
law,as ours was passed by the people, it is worked by the people, and 
for the people. 

If the Hebron-Doliver bill is passed by Congress it will prevent 
Kentucky, West Virginia, Baltimore, and Washington from sending 
whisky into Montgomery County in the original packages, or in any 
shape, to be sold in violation of a law that has done more for our 
count}^ and people than any other we have had enacted and enforced. 

STATEMENT OF MS. DINWIDDIE. 

Mr. DiNWiDDiE. Mr. Chairman, I think I have just one suggestion 
to make. I appreciate the courtesy of the committee. I think we 
have two or three hours to the good, if we were dividing time equally. 
But that is not necessary. I believe the facts which the committee 
wants to get and the information you want to get are largely before 
you. I think the speeches that have been made bv the legal friends 
on this side and the other side are sufficient along those lines. I only 
want to correct one impression that I think possibly may have been 
given by the people on both sides, namely, that this is a prohibition 
matter. 

Judge Smith in his able argument disposed of that. It is not a pro- 
hibition matter, it is not a question of temperance in one sense. It is 
simply a question of the United States permitting state legislation to 
be effective on this question. 

But the point that I want to bring out is that although Iowa has 
been brougnt very largely into prominence in connection with this 
measure, it is a measure that concerns every State in the Union, and 
from the States generalljr there is a very large and insistent demand 
for the passage of the bill. It concerns my State of Ohio. I know 
the public sentiment of Ohio well enough to know that they are prac- 
tically as largely concerned in the passage of this measure as they are 
in Iowa. It concerns every State in the Union, no matter what its 
policy on this question may be, and I simply want to leave that final 
word, that this question is of vital interest to every State in the entire 
Union. 

Mr. Bartholdt. Mr. Chairman, twenty -one members of the House 



HEPBUBN BILL. 231 

of Representatives have to-day heard, and I was placed in charge of 
the time in opj)osition to this bill, and they have come to me and asked 
me for the privilege of being heard. You know it was a physical 
impossibility to hear them in the time allowed for this bill, even as 
much time as the committee has given to the discussion of this matter, 
and these gentlemen (twenty -one in number) ask to be heard. 

Most of them, I believe, also have applied to the committee. I 
therefore request that they be heard at a future time. They have 
constituents, and they have just now, in the past few days, heard from 
these constituents. The fact is that there has onlv be^n one side that 
has known anything about this, for the reason that there has been a 
bureau that hag worked up this sentiment. 

Mr. LiTTLEFiELD. I Want to say, Mr. Chairman, that Brother Otjen 
is here, and that he has some telegrams from his district that he would 
like to present to the conmiittee so that they may go into the record. 
Inasmuch as it will only take about a minute and a half, I would ask 
unanimous consent on the part of the committee to suspend for that 
purpose. 

Mr. Otjen. Mr. Chairman, these are telegrams I have just received 
from my district. I will read them to you: 

Milwaukee, Wis. 
Congressman Theodore Otjen, 

WcLshingUm, D, C 
Kindly use your efforts to oppose Hepburn bill of the 20th. 

John Birth & Company. 

Then another one. 

Hon. Theobald Otjen, 

House of RepreserUatives, Washington^ D. C; 
We respectfully request you to appear before the House Judiciary Committee at 
10.30 o'clock, January 20, to oppose the Hepburn bill. 

A. Breslauer Company. 

Another one. 

Milwaukee, Wis., January 18. 
Theodore Otjen, 

House of Representaiives, Washington, D. C: 
Please use your iufluence against Hepburn bill, January 20, House Judiciary Com- 
mittee. 

Weis Brothers. 

Another one. 

Milwaukee, Wis., January 18. 
Hon. Theodore Otjen, 

House of Representatives, Washington, D. C; 
We most respectfully pray you to appear before the House Judiciary Committee at 
half past 10 o'clock, January 20, in opposition to the Hepburn bill. 

National Distilling Company. 

Another one. 

Milwaukee, Wis., January 18, 1904* 
Hon. Theodore Otjen, 

Member of Congress, Washington, D. C: 
Kindly appear before the House Judiciary Committee, Wednesday morning, the 
20th instant, and oppose the Hepburn bill. 

FiGGE Doyle Company. 
* 



232 HEPBURN BILL. 

Another one. 

Milwaukee, Wis., January 18, 1904* 
Hon. Theodore Otjen, 

1716 Corcoran Streety Washington, D. C: 
Hepburn bill comes up Wednesday, 20th instant, half past ten o'clock. Kindly 
appear before House JudLciary Committee and do eveiythmg in your power to defeat 
same. 

J. P. Kissinger Company. 

Another one. 

, Milwaukee, Wis., January 18, 

Hon. Theodore Otjen, 

Wa£hing^, D, C: 
Kindly appear before the House Judiciary Committee at half past ten o'clock, 20th 
instant, and use your full power to ojipose Hepburn bill, which means national 
prohibition. 

The William Bergenthale Company. 

Another one. 

Milwaukee, Wis., January 18, 1904^ 
Hon. Theodore Otjen, 

Washington, D. C* 
We urgently request you to use your influence in defeating the Hepburn bill, 
which wul come up before the Judiciary Committee, Wednesday at 10.30 a. m. 

Emil Kiewert Company, 

Another one. ' 

Milwaukee, Wis., January 18, 1904^ 



Hon. Theodore Otjen, Washington, D. C. 

Use your influence againsi 
Representatives, Wednesday 



Use your influence against Hepburn Bill, before Judiciary Committee, House of 
'" ' ' at 10.30. 



Newman & Fbisch. 
(Adjourned.) 



[Continuation of argument of Hon. Wm. Hougfi, additional argument of Mr. Robert 
Crain, and statement of Hon. J. A. Kelliher will be found on page 275 et seq.] 

SUPPLEMENTAL STATEMENT OF EEV. EDWIN C. DINWIDDIE, 
LEGISLATIVE SUPERINTENDENT, AMERICAN ANTI-SALOON 
LEAGUE. 

Mr. Chairman and gentlemen of the committee, I am not going to 
take much of the time of the committee. I want to say in this connec- 
tion, however, that at the earnest req^uest of the opponents of the 
measure, the hearing was set forward six weeks, and then three entire 
days devoted to the discussion of this matter before the conmiittee, 
and then by our courtesy as proponents of the measure, the opposition 
took from an hour and a half to two hours more than we nad, and 
they have practically occupied all of to-day, and we had hoped that by 
limiting the time we could permit the committee to take its action 
upon the matter either pro or con — and we sincerely hope pro — so that 
the House could pass upon the bill itself. 

The last gentleman wno has taken his seat — I hope that he is still in 
the room— has not fairly stated the case, if the statement is made that 
a very inconsiderable part of any State, or even Massachusetts, is in 



HEPBUBN BILL. 233 

favor of this bill. I know very much about what the sentiment in 
Massachusetts is in this matter, and I have no doubt certain merchants 
in Boston do no£ want this measure passed. Those merchants in Bos- 
ton are chiefly those who are engaged in the systematic attempt • to 
unload these liquid goods in Maine, Vermont, and New Hampshire 
contrary to the will of the people of those States, and Mr. Tirrell, of 
Massachusetts, was here a few davs ago and said to the committee what 
Massachusetts did think about tliis measure from his knowledge, and 
I submit that that is entitled to equal consideration as to the ste;tus of 
Massachusetts in regard to the matter. 

Mr. Grain stated a few moments ago that he had not heard anything 
in respect to the measure except from Iowa and Kansas. I am sure 
that the proponents of the measure have endeavored to make plain 
what is the absolute truth in the matter, that the other States in the 
Union, and I think we may say without exception — particularly is this 
true of upward of 35 of them — are as vitally interested in the passage 
of this measure as is Kansas or Iowa, for everv State, barring three 
or four, has legislation upon this question which is affected by these 
outside shipments of liquor in a sense in contravention of State and 
local legislation. Not that these States have prohibitory legislation, 
but they are like my State, Ohio, which has not a prohibitory law, but 
where we have a large sentiment in the State in favor of saloons and 
of drinking, and where the State for years past has not made any effort 
to prohibit the liquor traffic in toto, but where they have expressed 
their local sentiment and put the question in such shape that the peo- 
ple may .decide in their own localities what they want on this measure; 
and they are vitally interested in this proposed legislation, and so are 
the other States of the Union, and it is not a question of prohibitory 
legislation, contrar}'^ to what these gentlemen have said. 

I have an example here stated by our attorney in Iowa, and Iowa is 
not wholly prohibitory; it is modified by the mulct tax in Iowa, so 
that in many sections of Iowa liquor is locally sold under the opera- 
tion of the present law. Outsiders have sent their order takers into 
Iowa to take orders, even in the saloon districts, to avoid the payment 
of the mulct tax, which is not a prohibitory measure. A man can 
circumvent these other laws under the present legislation as it is 
interpreted. 

The Chairman. If it would not interrupt you I would like to get 
your views on this. I would like to ask you a question which I asked 
of a lady who came here j^esterday. She stated, practically, that she 
wanted a law passed to help the local-option counties in Ohio. I asked 
her, as I would like to ask you now, how it is going to help conditions 
in Ohio, and I am limiting it now to Ohio, to pass this bill? That is, 
what is to prevent a resident of a local-option county from getting his 
liquor from Dayton, Cincinnati, or Cleveland? 

Mr. DiNwiDDiE. We manage that entirely by State legislation. 

The Chairman. I asked her and she said she did not know. 

Mr. DiNWiDDiE. I do. We manage that entirely by State legisla- 
tion, which we are entirely competent to do. 

Mr. Smith, of Kentucky. Let me supplement that. 

Mr. DiNWiDDiE. Do you mean the question or the answer? 

Mr. Smith, of Kentucky. Let me supplement the question by another 
one along the same line. 

If, as is indicated in these decisions of the Supreme Court, interstate 



234 HEPBURN BILL. 

commerce is permitted from its beginning to its delivery to the con- 
signee, or at the place of consignment, what is to prevent anyone 
within a local-option district in Ohio from giving an order to a liquor 
man in Kentucky and having the liquor shipped to him? 

Mr. DiNWiDDiE. For his own use? 

Mr. Smith, of Kentucky. Yes. 

Mr. DiNwiDDiE. It can be done. 

Mr. Smith of Kentucky. Whether for his own use or not. 

Mr. DiNwiDDiE. You are right about that. It can be done. Then 
the question whether it is for his own use or for sale within the State 
arises after that? 

Mr. Smith of Kentucky. Yes. 

The Chairman. I would like to lay aside the legal aspect of those 
questions, and ask you that question, how is it going to help the State 
of Ohio to-day to pass this law, as long as you concede that the liquor 
is sold openly in Ohio under this law U)-day? 

Mr. DiNWiDDiE. But it is not so sold in territory which is under the 
operation of local option legislation. 

Mr. De Armond. In other words, the State legislature can prohibit 
other parts of the State from shipping liquor into that local option 
district? 

Mr. DiNwiDDiE. Absolutely, and States frequently do it. 

The Chairman. That may be true, but how is it to help you as far 
as this law is concerned ? Tliere is nothing to prevent them from going 
to Dayton and getting it? 

Mr. DiNWiDDiE. No, sir. 

The Chairman. Suppose this law was passed to-day as you want it 
exactly. How is it to help conditions in Ohio? 

Mr. DiNWiDDiE. We are not asking this to prevent people in Day- 
ton from shipping liquor over into another county. W hat we want is 
that liquor dealers in Wheeling, W. Va., shall not be allowed to ship 
liquor over into Harrison County and store it there and give it out to 
X, Y, and Z. Under the present law it has to get into the hands of 
X, Y, and Z before the State jurisdiction can attach. That is the 
difficulty. 

Mr. rARKER. Why can not a Dayton man do that now? Can he 
not ship to the next county? 

Mr. DiNWiDDiE. I find that those men have not attempted to do it 
systematically as they have elsewhere. 

Mr. Parker. Is there any law to prevent it? 

Mr. DiNwiDDiE. There is in many of the States. 

Mr. Parker. Can they do it? 

Mr. DiNwiDDiE. Yes, sir. They can handle that under their State 
law. We are not asking you to do something for the State that the 
States are competent to do for themselves. Congress is not competent 
to do that for the States. As to the matter of the internal liquor 
traffic, even some of us who are laymen and are not lawyers, know 
that that is held absolutely in the hands of the States under their police 
powers. What we want is to reach and stop the peripatetic dealer 
who operates under the guise of interstate commerce, and does what 
a citizen of that State or that community is not permitted to do under 
the laws of the State; and they rest on the Supreme Court decisions 
in construing the verbiage of the Wilson law. 



HEPBURN BILL. 235 

Mr. De Armond. That is, that it is not delivered until it is 
delivered? 

Mr. DiNWiDDiE. That it has not "arrived" until it is delivered to 
the consignee. 

Mr. De Armond. Yes, and then it is gone. 

Mr. DiNWiDDiE. Yes, sir; they lose sight of it. 

Mr. Henry, of Texas. Wherever they ship it into the local option 
precincts they say that it is interstate commerce. 

Mr. DiNWiDDiE. Yes, sir; and they override the laws of the State 
in that way. 

The Chairman. What is the difference between a man in a local- 
option county drinking whiskey that he gets from Kentucky or from 
Dayton ? 

Mr. DiNwiDDiE. There is no difference. 

The Chairman. You are discriminating against local dealers and in 
favor of nonresident dealers. 

Mr. Dinwiddie. No, sir; we do not want that. We do not want 
any discrimination in favor of the outside dealer. The present dis- 
crimination is in favor of the outsider, unquestionably. We do not 
want the outsiders to be permitted to do what we forbid our own citi- 
zens to do. 

The Chairman. I understand that the sale of liquor is legalized in 
the State of Ohio? 

Mr. Dinwiddie. Except as modified by the action of the people in 
various communities. 

The Chairman. I understand you have in the various towns 

Mr. Dinwiddie. Local option. 

The Chairman. Yes. And a man living in a local-option county 
can buy liquor in Cleveland or Dayton. 

Mr. Dinwiddie. 1 will not say in Ohio. That is my State, but I am 
not familiar as to the exact verbiage of the law. But under certain 
circumstances he can not. He can not in Iowa or West Virginia. A 
man can not live in a local-option county in West Virginia and have 
liquor shipped in to him from any county in West Virginia; but until 
this law passes a man can ship it from another State into that local- 
option county, and you are permitting outsiders to do what the citizens, 
the residents, of the same State can not do. It is in favor of the out- 
side man and against the man who lives in the State. 

This question hinges on the desirability and necessity of this sort of 
legislation. 

Mr. De Armond. That is one thing. 

Mr. Dinwiddie. I do not mean the question before the committee. 

Mr. Smith, of Kentucky. I think one of the important questions in 
this connection is the power of Congress to act. 

Mr. Dinwiddie. Yes, sir; 1 mean the important question that is 
being raised. I want to read in this connection a letter. Of course 
Iowa and Kansas have been brought forward and emphasized here, 
not because they are the only States involved, but because Iowa, in 
particular, is the State whose legislation has been most largely involved 
in the courts, and therefore the decisions and references have been 
very largely in regard to Iowa. That is one reason why Iowa has 
been given, perhaps, undue prominence in this matter. This letter is 
from the attorney of the Anti-Saloon League of Iowa. 



236 HEPBURN BILL. 

Des Moines, Iowa, November !S7, 190S, 
Rev. Edwin C. Dinwiddie, 

BliM Building, Washington, D. C. 
• Dear Sir: Replying to vour inquiry of the 24th, will say that the interstate- 
commerce law has enabled the express companies td turn tneir local offices into 
original-package liquor stores, and, strange as it may seem, most of them have not 
been slow to avail themselves of the opportunity. Their local agents are encouraged 
to take agencies for breweries and distilleries, and many of them are acting as such. 
A bootlegger, as we call these peripatetic liquor dealers in Iowa, will order a case of 
beer from a dealer beyond State Imes, as he has a right to do, provided the liquor is 
for his own use, but usually orders C. O. D., most of nis class never having sufficient 
money ahead to send cash with the order. When his case of beer arrives, he goes 
through the stores and offices, taking advance orders for a bottle at a time until he has 
collected sufficient money to pay the C. O. D. charge. Then he takes the case out of 
the express office, fills the orders he has taken, and sells the remainder of his case at 
his leisure. In many of the smaller cities of Iowa there are men whose sole employ- 
ment is this kind of business. 

We have a statute in this State which makes possession of intoxicating liquor in any 
public place prima facie evidence of unlawful intent. The practice is to issue a 
search warrant and seize liquor found in a public place, and thereupon the burden is 
on the owner to show the innocence of his ownership. Seizure by search warrant is 
the most effective weapon against small violators. 

There are a number of express agents in this State who make a practice of keeping 
considerable quantities of liquors on hand, consigned to fictitious persons. A solic- 
itor has a list of those packages and goes around among the drinkers and takes orders. 
The drinker appears and gives the fictitious name and receives the package. A 
banker at Grinnell was convicted by the district court of Poweshiek County of main- 
taining a liquor nuisance in his bank by negotiating liquor bills of lading in this 
manner. Of course this last scheme is a violation of law, and when the facts can be 
proven we have no difficulty with that class of violators. The trouble is, however, 
that when the liquor is seized the interstate commerce plea is brought forward and 
overcomes the presumption of guilt raised by the Iowa statute, and there is a total 
failure of evidence. If Congress will remove all national protection to this class of 
merchandise, we think that our State at least can adjust its local laws so as to largely 
check the abuses above mentioned without doing anyone any injustice. 
Very truly, yours, 

DUNSHEE & DORN. 

I want to call the attention of the committee to the fact that I sub- 
mitted as part of my remarks, on the 2d, 3d, and 4th of March, a cir- 
cular letter sent out for the purpose of getting express agents to act in 
this capacity, and Judge Smith called attention to the fact that so 
flagrant had such practices become that one of the express companies 
had discharged one of its employees because he had refused so to act. 

Mr. Smith, of Kentucky. Is that state of aflfairs due solely to the 
inefficiency of the lack of execution of State laws? 

Mr. Dinwiddie. No, sir; because they find upon apprehending 
those people and bringing them before their State courts that they 
can convict them under State law so long as it is not an interstate-com- 
-fnerce shipment. But we find that they plead the interstate-commerce 
act of the United States, and then our State courts are overridden, 
and the case is knocked out on the ground that the higher courts have 
held that it is permissible. 

The Chairman. As a practical question, and we are very much in- 
fluenced by what we see, I will say that 1 was in Iowa, and was for 
three weeks in the same town, and I did not see any jugs of whisky 
around in the express office; but between the hotel and the express 
office I took a friend into places which were wide open, and no at- 
tempts made at concealment. 

Mr. Dinwiddie. There was not any necessity. There was not any 
occasion for the bootlegger in such a place, I should say. 



HEPBURN BILL. 237 

The Chairman. What are you complaining against the express 
office for, when here are these saloons, as I say, wide open? 
Mr. DiNWiDDiE. In a place like that, I am making 



The Chairman. I took a man with me who is called a temperance 
crank — 1 never use that term against any one. I took him to con- 
vince him. He would not believe it until he saw it. We went there 
to make a study of the question. 

1 am trying to get at a solution of this question, and I want to know 
why you should spend so much time talking about the jug and the 
express office when you can find liquor for sale on every street in the 
town? 

Mr. DiNWiDDiE. But you can not do that in every place. 

The Chairman. I was in several places, and there was no difficulty 
at all about getting liquor anywhere. * 

Mr. DiNWiDDiE. Yes; and Sioux City is notorious for lawlessness 
in that way. A man was murdered there who was active in the prose- 
cution of cases there. He was murdered by a brewer, who practically 
confessed it and was cleared by a jury. That is one of the worst 
places on this question in Iowa. 

The Chairman. You are talking about the express office, and I want 
to know why that question should arise when you can get liquor on 
almost every street in every town in Iowa. 

Mr. DiNwiDDiE. I would not say that that could be done. I know 
that it can not be gotten in many cities. Iowa is not a prohibition 
State in those places where you were — Davenport, and Des Moines, 
and Dubuque. They have those places, just as we have them in Ohio. 

Mr. Parker. Why, the constitution prohibits it absolutely. 

Mr. Dinwiddie. Except as modified. 

Mr. Parker. The law has never been modified. 

Mr. Dinwiddie. If I remember it rightly there was a flaw in the 
adoption of the constitution, and some years after that they modified 
the State law of Iowa in this way, by providing that under certain 
conditions, by securing a certain number of petitioners, they could 
sell liquors, and under that they sell liquors in the larger cities of 
Iowa. It would not be safe to say that Iowa practically is much more 
of a prohibition State, in one sense, than Ohio is. We have certain 
places in Ohio that are prohibition, but the State is not. The differ- 
ence is this: Iowa is under prohibition except as local public sentiment 
permits liquor selling under certain conditions. Ohio permits saloons 
and taxes them, but under township and municipal local option, the 
people can and do exclude them from many portions of the State. 

Mr. Brantley. There is one question I wanted to ask you. You 
are no doubt familiar, and in a position to be familiar, with the deci- 
sions of the courts on the sale of liquor. Now, this circular that you 
incorporated in your remarks, which have been printed, that circular 
offered the express agents a commission on all liquors that they should 
sell. Suppose that an express agent solicits an order at the place of 
his residence for a company, transmits that order, collects the money 
from the man who gives the order, puts a part of that money in his 
own pocket as his commission, and delivers the liquor and sends the 
balance of the money to the company, have you any decision to the 
effect that the selling of that liquor is in violation of the State law? 

Mr. Dinwiddie. No, sir; it has been decided 3'^ears and years ago 
that the State could not interfere with a company's agent in taking the 



238 HEPBURN BILL. 

order. One has a commission and the other has a salary. I do not 
know that there would be a vital distinction there. 

Mr. Little. I can not see any. 

Mr. DiNwiDDiE. That would go to the validity of the sale. 

Mr. Brantley. Have you any case on that? 

Mr. DiNwiDDiE. No, sir; I have not. 

Mr. Smith of Kentucky. Here is a question. If it is permissible 
for the whisky dealers in other States to have sales agents, what more 
objection can there be to an express agent becoming the agent of one 
of them than to anybody else becoming such agent, if he has the time 
to look after it? 

Mr. DiNWiDDiE. I confess that we have not drawn that distinction, 
because we are opposed to both being done in the States where the 
citizens have said tiiat thev can not do it. 

Mr. Brantley. Have there been any prosecutions for that? 

Mr. DiNwiDDiE. Yes, sir, there have been; and they have been 
variously, in the lower courts, convicted. But under the rulings of 
the courts out of Iowa they would be convicted right along. Under 
our rulings in Ohio they have been convicted. But when they come 
up, if they are wise enough to plead interstate-commerce shipment, 
they get free every time. That is where our difficulty is. We do 
not ask to be helped to enforce State legislation. 

Iowa City, Iowa, November 28, 190S. 
Edwin C. Dinwiddie. 

Dear Brother: Our State law, by reason of the interstate commerce law, is vio- 
lated in many ways, three of which I designate below. 

First. Men come from adjoining (or other) States as ** order takers.** In the pro- 
hibition counties they will even go into the country, possibly to the cornfields, with 
a variety of samples, giving them to men and boys and inducing them to give them 
an order. Many buy who otherwise would not buy at all. 

Second. These "order takers** go into the license counties and in the cities or 
towns sell to individuals (bankers and business men) by representing to them that 
they can sell liquors for less money than they can at the saloons or druggists where 
a license is paid. 

Third. Liquors are shipped to the express offices. I have known of from 50 to 
100 packages being in an express office at the same time. These same * ' order takers * * 
will see a man and ask if he ** wants a No. 1 drink for a low price; if so, you can 
call at the express office for a package sent to Thomas Jones or Dick Hughes or other 
assumed name." Any man can go to the office, pay for, and obtain the liquor. 
Yours, 

H. H. Abrams, 
State Superintendent of Legislation. 

Now, these men who have had a lot of experience along this line 
stated that that was done; this same thing was stated by Colonel Hep- 
burn and Judge Thomas and others who were familiar with this situa- 
tion. That is not done by the fellow going out and delivering the 
thing itself. They could probably reach him under the law for a 
resale, if he did that; but it is done in a roundabout way, by consign- 
ing to themselves, and then giving over the bill of lading to somebody 
who will come up and pay the express charges and the C. O. D. charges 
and the cost of the liquor; or to X or Y or Z, or to John Jones or 
anybody else, and in that way they evade the laws of the State or 
locality, and successfully, under the decision of the court in the case 
of Rhodes v, Iowa, wherein it was held that the interstate commerce 
shipment — I want to emphasize that fact — under the terms of the 
statute, did not cease until delivered to the consignee. That is an 
important thing to emphasize there, that it is on the verbiage of the 



HEPBURN BILL. 239 

Wilson law that the Supreme Court rendered the decision that liquor 
could be shipped in in this way. 

What the Supreme Court would decide if Congress passed this bill 
which gave the State jurisdiction before and after delivery I do not 
think any man, no matter how astute he might be, is prepared to say. 
I do not even think that my friend Judge Hou^h can say, with as much 
authority as he has, that the Supreme Court will declare such a law as 
we press for unconstitutional, and I base this statement upon this fact, 
that when this question was before Congress last year, was before the 
Senate Committee on Interstate Commerce, Judge Hough said, and 
I quote directly from his statement before that committee: 

No one wonld think of urging a violation of a State statute, and is the Constitu- 
tion of the United States to be held less sacred? The authority given Congress by 
the Constitution is to regulate commerce between the States, and it is beyond ques- 
tion that the power to regulate does not include the power to prohibit. ( Hearings, 
p. 45.) 

And I may say that within ten days after this statement was made 
by the judge with just that positiveness, that this could not be declared 
constitutional, the Supreme Court came out in the lottery cases and 
decided the converse of that proposition, and decided that that was 
exactly what Congress could do and had done in many cases. Up 
until the time of the lottery cases the opponents of this measure 
predicated their opposition upon the proposition almost entirely that 
the power to regulate interstate commerce, which was conceded to be 
vested in Congress, did not include the power to prohibit, and within 
ten days after that the Supreme Court, speaking through Mr. Justice 
Harlan, said that that was precisely what Congress could do. 

The Chairman. You are speaking about the embarrassment the 
decision in the case of Rhodes gave you, but you did not go further 
and state what the Supreme Court decided in that (particular case. 
Now, in Rhodes v, Iowa they simply held the consignee was entitled 
to receive the goods. That was all they decided? I 

Mr. DiNwiDDiE. Yes, sir. 

The Chairman. Now, in the next case, we will s^.y, to carry the 
argument along, the party attempted to sell after the goods were 
delivered to him. 

Mr. DiNwiDDiE. That was in the Rahrer case, before the Rhodes 
case. 

The Chairman. That man, the Supreme Court decided was entitled 
to receive his goods, undertook to sell. That is the fact, is it not? 

Mr. DiNWiDDiE. Yes, sir; that he can not do. 

The Chairman. And the State punished him, and the Supreme 
Court of the United States affirmed the judgment on the ground he 
had no right to sell. 

Mr. DiNWiDDiE. I am perfectly clear on that. 

The Chairman. That is what I was calling your attention to this 
morning — that a man can not sell to-day in the States which prohibit, 
notwithstanding the power of interstate commerce. 

Mr. DiNwiDDiE. But they do it, and they can do it under the sub- 
terfuges they have devised. 

The Chairman. What subterfuge? 

Mr. DiNwiDDiE. Just this, that the express agent, the representa- 
tive of the common carrier carrying interstate commerce shipments, 
operates as a representative of liquor men and has the goods in his 



240 HEPBUBN BILL. 

possession as agent of the express company, holding these goods for 
the carrier as warehouseman. Their relation to the shipment as a car- 
rier Jias practically ceased, but in their character as warehousemen, 
under the Rhodes clecision and the methods of evasion through indis- 
criminate delivery they become practically the consignee. There is 
no consignee at all, and any man comes up, gets the goods, and goes 
away. 

The Chairman. That is the decision under the Iowa law, and that 
is the reason I invited your attention to that law, to let you see that 
sale is illegal to-day. 

Mr. DiNWiDDiE. That is the Iowa law, but in attempting to enforce 
that Iowa law the violators rest under the protection of the decision 
of the Supreme Court in the Rhodes case, and the Iowa or State law 
falls as it would not fall after the passage of this act. That is all. 

Mr. Brantley. Going back of that, I want to ask j^ou if you draw 
any distinction between the power of Congress to regulate or prohibit 
ana its power to delegate to the State the right to regulate and pro- 
hibit? 

Mr. DiNwiDDiE. Most assuredly. As a layman, and I think a law- 
yer would say the same thing, there can hardly be a question but that 
this law might be declared unconstitutional. I believe it will be 
declared constitutional. I believe — I know — that we ought to go to 
the length of trying to ^et the States relieved of this trouble, and the 
Supreme Court has said in the Scott v. Donald case, as you will 
remember, that this ought to be done, and that we ought to go to the 
extent of stretching a point to ^et relief for the evils complained of. 
But the Chief Justice's remarks in the Rahrer case that the Wilson law 
was constitutional are in direct answer to Mr. Brantley's question, 
and he went on to say that it was not a delegation of power. I quoted 
this decision in my opening remarks on March 2. And, as Judge 
Smith said the other day, it is rather an exercise than a delegation of 
Congressional power. 

You may remember that for years and years, almost from the foun- 
dation of the Government down to the time that the transportation 
case in Iowa came up, a sale by the consignee, or the importer — that 
is probably a better word to use — the sale by the importer of articles 
from sister States, of foreign articles, was considered an essential; it 
was considered an integral part of interstate knd foreign commerce; 
and yet Congress, in the exercise of its power to regulate interstate 
and foreign commerce, by the passage of the Wilson bill, withdrew 
and intended to withdraw this essential element. 

It was the right of the consignee to sell the goods in the original 
package after they were received by him. Then when they came to 
investigate it — as you know every law must be interpreted on some 
specific point — when thev came to determine a particular case, the case 
of Rhodes v, Iowa, and had under consideration the language of the 
act, they construed the language "arrival within the State" to mean 
''after delivery to the consignee." But that was simply their decision 
as to what Congress meant by that verbiage. 

Mr. Smith, of Kentucky. And in that connection take the language 
used in the case of Vance v. Vandercook, where it says: 

But the weight of the contention is overcome when it is considered that the 
interstate-commerce clause of the Constitution guarantees the right to ship merchan- 
dise from one State to the other and protects it until the termination of the shipment 
by delivery at the place of consignment. 



HEPBUBN BILL. 241 

Now, the Supreme Court says it is the Constitution that does this, 
and if it is the Constitution that does it, how can Congress abandon 
or surrender that protection which is afforded by this clause of the 
Constitution ? 

Mr. DiNWiDDiE. I may say to Mr. Smith that the court did not say 
in Vance v, Vandercook case that the right to import for personal use 
was one derived from the Constitution, which was inalienable and 
could not be abridged by legislation. The court said (p. 452-453 in 170 
U. S.): ''But the right of persons in one State to ship liquor into 
another State to a resident for his own use is derived from the Consti- 
tution of the United States and does not rest on the grant of the State 
law." That is, it is one the States can neither grant nor den3^ It is 
not conceded that Congress can not. I am frank to say that I have 
heard lawyers, lawyers of ability, use the same language about (Con- 
gress abandoning or delegating its power. 

I am frank to say you can not state with definiteness what the court 
is going to say. If you have read all the opinions — the majority opin- 
ions, I do not speak of the minority ones — you will see it is an abso- 
lute impossibility to say that the court, because of what it has decided 
in these other cases, is going to decide the constitutionality of this law 
one particular way; and we do not claim it on our side, and I do not 
think there is anything to justify the sweeping statement that the 
Supreme Court can not do anything else but decide this unconstitutional. 

The Chairman. You do not think the court has been inconsistent, 
do you? 

Mr. DiNwiDDiE. No, sir; I would not say that. But you take the 
language in the case of Vance v. Vandercook and in the case of Rhodes 
"v. Iowa, and I say that the statements in the opinions of the court are 
of such a nature as to give us no rule by wnich to say that they are 
going to declare this law constitutional or unconstitutional. 

The Chairman. That may be so; but I must say that after reading 
all those cases I think they are in harmony. 

Mr. DiNWiDDiE. I think there has been harmony in the court since 
they reversed themselves in the New Hampshire license cases a num- 
ber of years ago, where, in interpreting the present law, thev said 
that where Congress did not speak the States could act. I would not 
say that there had not been harmonious decisions from that time to 
this, but I say that the statements of the opinions in Rhodes v. Iowa, 
and Scott v. Donald, and Vance v. Vandercook, and the lottery cases 
are not of such a nature as to enable us to say that the court can not 
do anything but declare this to be unconstitutional. In my judgment 
these cases, taken with the Rahrer, indicate exactly the reverse. 

The Chairman. From your view the Supreme Court would have to 
reverse itself on a point upon which the court is unanimous, because 
in the case of Vance v. Vandercook, if you will look at it, you will see 
that the right of a person living in Iowa to send to Kentucky to get 
his liquor, and the further question whether that man in Kentuckv 
can ship his liquor into Iowa — that is, ship in blind pigs, as they call 
them — IS considered, and the Supreme Court held unanimously that the 
individual could have that liquor shipped to him for his own use. The 
majority held that they could not ship unless it was for the consignee, 
but the minority of the court held that on account of the interstate- 
commerce clause the State could not interfere and that Congress 
could not give them the right to interfere. But the majority of the 
H B— 04 16 



242 HEPBURN BILL. 

court was consistent in holding that it would be a violation of the 
State law to ship unless there was a bona fide consignee. I am satis- 
fied that you do not understand as you would if you had carefully 
studied those cases. 

Mr. DinwiddieI I am not here to go into the legal phases of the 
question any more than I have, for the reason that 1 do not claim to 
be expert on these lines; but I have rested, and with some reason, on 
the statements of Judge Thomas of this committee, Judge Smith, and 
of Colonel Hepburn, who have all had experience in handling these 
cases in court, and with the full determination on the part of the bench 
and of the people to enforce legislation, and they tell us, with others 
in many States, that they can not secure proper remedy under State 
legislation, not because the State laws are not suflScient, or because 
there is not suflScient local sentiment to enforce them as well as any 
criminal laws can be, but because of the interstate commerce clause of 
the Constitution. 

The Chairman. I called your attention to that because you are very 
earnestly asking the committee to-da}^ to pass this law, stating that 
you can not judge from the past what the Supreme Court will do. 
From the decision that Jud^e Smith has just read you it was decided 
that the individual derives trom the Constitution the right to do what 
you insist now he ought not to do. Here is the unanimous decision 
of the court, recently made. Now, you say to us, ''Pass this law, 
trusting that the Supreme Court will reverse itself," because they 
would have to reverse themselves on that proposition. 

Mr. DiNwiDDiE. I have not heard any mtention expressed to stop 
a bona fide shipment for personal use, and I am frank to say — I can 
see this as a layman even — if the State would attempt to do it, if 
Vance v. Vandercook is as you conceive it to be, and is not reversed 
by the Supreme Court, a State could not do it. 

The Chairman: There is the language of the Supreme Court just as 
Judge Smith reads it to you — I have read it many times, that the indi- 
vidual derives the right from the Constitution. If he does so, Con- 
gress can not take it away. 

Mr. Smith of Kentucky: This makes no distinction in this language. 
It says: 

The interstate-commerce clause of the Constitution guarantees the right to ship 
merchandise from one State to another, and protects it until the termination of the 
shipment by delivery at the place of consignment, and this right is wholly unaffected 
by the act of Congress, which does not allow State authority to attach to the original 
package before sale, but only after delivery. 

Mr. DiNWiDDiE. It seems to me you forget that decision was made 
by construing the words in the Wilson law ''arrival in such State," 
etc., to mean, ''after delivery to the consignee." We avoid such inter- 
pretation of the Hepburn bill b}' saying ^''before and after delivery," 
and there is the clearest sort of suggestion — in fact, almost a direct 
statement — in the Ralner decision that Congress can divest interstate 
commerce original packages of their character as such whenever they 
get within the bounds of the State — even before delivery to the con- 
signee. Now, you see how easy it is to have a different opinion, 
because Judge Hough said that Congress could by one sweeping act 
of legislation stop absolutely the interstate shipment of liquors. 

Mr. Hough, i said that until Congress attempted to do that then 



HEPBURN BILL. 243 

this individual in the State had the right to receive, and the shipper in 
another State had the right to have it delivered to the consignee. 

Mr. DiNwiDDiE. That is true. 

Mr. Hough. 1 never have conceded that Congress has the right to 
prohibit an interstate shipment of any kind. 1 have taken the position 
and have sustained the proposition that it has not the right under these 
decisions, two of which are original Suprene Court decisions and one an 
Iowa decision; and 1 apprehend if Congress should pass a law saying 
that there should be no interstate shipments of any kind whatsoever, 
there would be no hesitation on the part of the court in saying that 
that is unconstitutional. If they have a right to prohibit, they could 
absolutely prohibit the transportation of every article, and thus destroy 
the very thing which the delegation to Congress of the power was 
intendea to conserve and preserve. 

As to the lottery cases, the conclusion to be drawn from that decision 
is to the effect that it may sometimes amount, as Justice Harlan said, 
to prohibition; but I am satisfied if you eliminate the lottery decision 
ana then observe the difficulty from an a priori standpoint you will 
reach the conclusion as lawyers that aside from the definitions given 
by the lexicographers it does not ^ive a power to absolutely prohibit. 
Ijiegulation comprehends continuitj^; prohibition contemplates cessa- 
tion. They are absolutely antagonistic, and I am afraid that that can 
not be adhered to by the Supreme Court. 

Mr. Smith. I have had the impression that Congress would have the 
right to prohibit the traffic in malt liquors. 

Mr. Hough. Have you an impression that Congress would have the 
right to destroy the commerce in everything? 

Mr. Smith, of Kentucky. No, sir. 

Mr. Hough. Now, Congress has no police powers, and therefore 
when they act as to any commodity it can not be for the benefit of the 
health or morals of the community, because a thing which is based npon 
that alone is relegated to the police power, and therefore they have 
no greater power m regard to intoxicating liquors than in regard to 
tobacco or cigars, or in reference to coal or flour or anything else; and 
therefore if you proceed and follow that argument to its logical con- 
clusion, if you assert that it has the power to prohibit the traffic in 
one thing you must necessarily concede the power to prohibit the 
traffic in everything. 

Mr. DiNwiDDiE. How about the lottery cases? 

The Chairman. I want to see how you harmonize a statement like 
this. Now, you say that you are not opposed to these people having 
liquor for their own use. I want to find out what you are seeking. 

Mr. DiNwiDDiE. I will say. Judge, that 1 will answer your question 
if I can, but I want you to understand that I am not claiming to be a 
lawyer. 

The Chairman. Now, suppose the State of Georgia passed a law 
to-day absolutely prohibiting the sale of intoxicating liquors in the 
State; 1 will say '*absolutely prohibiting." Now, under the decisions 
of the Supreme Court of the United States a person living in Georgia 
can send to another State in the Union for intoxicating liquor for his 
own use. But no one outside of Georgia can ship liquor into that 
State unless it is to a bona fide consignee. That is all that can be 
done to-day under present law, with the harmonious decisions of the 
Supreme Court for manv years back. 



244 HEPBURN BILL. 

Mr. DiNWiDDiE. Will vou tell me- 



The Chairman. Now, 1 am trying to find out what you are seeking" 
to prohibit. 

Mr. Din wiDDiE. 1 accept that statement. Let me ask you this ques- 
tion, then: How can the State of Georgia, under the proposed case, 
deal with a shipment to a fictitious consignee like John Doe or Richard 
Roe, or X, Y, or Z, a package sent and a letter mailed at the same 
time, as Judge Smith said had been done, and as we know has been 
done in many instances, instructing the agent to deliver to anyone who 
comes and pays the charges, C O. D., on that liquor? 

The Chairman. The gentleman who made that statemant certainly 
never read the Supreme Court reports. If you read the cases of Vance 
V. Vandercook and Scott v. Donald you will find that that point was 
there involved, and the Supreme Court held that the liquor dealer in 
Kentucky could not ship liquor into the State of Georgia in his own 
name. That is a much stronger case than yours. 

In that case a California house shipped liquor into the State of South 
Carolina in violation of the law. It was two carloads. One was on an 
order. The other was shipped in on their own account. The people 
in the State of South Carolma, instead of doing as the}^ are doing in 
the State of Iowa, seized those goods. 

Mr. DiNwiDDiE. They do it m Iowa and they end at the Federal 
court. 

The Chairman. No, thev did not. 

Mr. DiNwiDDiE. They do it in Iowa. 

The Chairman. They asked for an injunction. The lower court 
granted the injunction as against both of the carloads. The Supreme 
Court of the United States reversed that injunctional order, and said 
that the State had an absolute right to seize the carload shipped in 
there in the name of the owners of the goods, because they said that 
was in violation of the law of the State of South Carolina, but they 
held that the carload that was shipped in on the order of the individual 
was protected by the law. Now, your question is answered in those 
three cases. The State of South Carolina, instead of sitting around 
and seeing the jugs in the depot, seized them, and the Supreme Court 
said theyliad a right to do it, and ordered a judgment in favor of the 
people. You look at those cases and see. 

Mr. DiNWiDDiE. You know that every case that is taken up in the 
State supreme court is taken up under its own individual circumstances. 
There was a discrimination in Vance v. Vandercook, a thorough dis- 
crimination claimed and shown, and the court referred to it and made 
it a part of its decision, I think, that the State of South Carolina was 
discriminating. 

The Chairman. The earlier cases did come up on the question of 
discrimination, but there was no discrimination in this case. 

Mr. DiNwiDDiE We have found, and good lawyers have said, that 
it is an impossibilit3\ We will handle the State courts all right. We 
will do it in Ohio, and if we do not, we have no right to come to Con- 
gress along that line. If it is because of poor local sentiment, or 
because of a poor judge not interpreting things properly, we have no 
right to ask Congress to help us. But we do want it fixed so that 
under the operation of the law, as in the case of Rhodes v. Iowa, they 
can not do tnat which they are now doing. 

The Chairman. You asked a question and I have tried to answer it. 



HEPBURN BILL. 245 

Now, as I told you, and as I tell you again, there are two questions 
involved. The very thin^you are now asking, the Supreme Court of 
the United States has said could not be done. The other thing that 
you are claiming is being done, the Supreme Cour, said can not 
be done. In other words, they said the men handling those jugs are 
liable to be punished if the State law is enforced. 

Mr. DiNwiDDiE. We are only asking for this law because we have 
tried those things and failed because of the interstate-commerce clause 
of the Constitution. I did not intend to say this much, because I 
thought that even the legal side of the question from our standpoint 
as proponents of the bill had been very well handled by Judge Smith, 
Mr. Wilson, and others. I have only tried to do what 1 could in 
handling certain facts of the case. 

STATEMENT OF HON. WILLIAM S. McNABT, A REPRESENTATIVE 
IN CONGRESS FROM THE STATE OF MASSACHUSETTS. 

I will not take up much time of the committee, because it appears 
to me that this matter has been adequately presented to you. I only 
want to say that I think public sentiment in our State and thereabouts is 
distinctly against any legislation of this character. Without attempt- 
ing to go into the local aspects of the case, it does seem to me that 
these gentlemen are trying under an act of Congress to enforce local 
regulations which they are unable and unwilling to enforce themselves 
As to their inability and unwillingness, I am not prepared to go into 
it, but it seems to me that they could prohibit the local sale of liquor 
in these States if there is sentiment sufficient to do it. 

It does not appear to me to be the business of Congress to supple- 
ment the action of the State. They ought to make the reform within 
their own borders and not come to Congress and ask us to enact legis- 
lation on this matter which can be just as well applied to articles of a 
very different character, to any articles, in fact, as well as to liquor; 
to tobacco, for instance. If it appeared to the people of any State 
that the use of tobacco or cigars is injurious to the morals of the 
people of the community — and many people think it is — and they 
choose to discriminate against that and then choose to come to Con- 
giess and ask us to prohibit the sale of it, that action would be just as 
reasonable and just as worthy of consideration as this. It appears that 
the attempt to prohibit the sale of liquor by prohibition laws is fruit- 
Less. The attempts to prohibit the manufacture or sale are attended 
with fair success, but the attempt to prohibit the selling of it is not. 

We had an era of prohibition in Massachusetts which was entirely 
unsuccessful, and the State abandoned it and took up an era of high 
license, under which there is traffic, to the manifest interest of tne 
community and of the manufacturers and dealers as well. W^e have 
had Maine, New Hampshire, and Vermont under prohibition laws, 
under which all the time liquor was consumed as freely as in New 
Jersey. At any time you could get liquor, and in some of these cities 
breweries were running under a full head of steam just the same as 
though there had been no prohibition laws at all. 

Mr. DiNwiDDiE. Only one ? 

Mr. McNary. Only one. W^ell, they tell me that in the gentle- 
man's own city there is a brewery running full head all the time, arid 



246 . HEPBUBN BILL. 

the only thing the authorities do is to take the matter up every once 
in a while and impose a little fine on it. 

Now, it is useless for this gentleman to come and ask Congress, 
because it can not be done by their State laws, to prohibit by law the 
use and consumption of liquor, and it is also useless for him to ask us 
to prohibit the sale of liquor by the people of his own State, because 
if the people of the State can not do that it can not be done. We, in 
my district, and the people of the whole city, are certainly opposed to 
this whole business. And such a regulation as this bill, even if the 
decisions of the Supreme Court were not against it, is clearly against 
public policy, because the decisions of the court are not to be lightly 
set asiae, and particularly should it not be passed merely^ beause of 
the inability of the people of Iowa, or any other State, to enforce their 
own laws.. 

ADDITIONAL STATEMENT OF ME. W. M. HOUGH. 

I would just like to say a few words further. I believe there is not 
to-day in any State of the Union complete prohibition. That is a fact, 
is it not? 

Mr. DiNWiDDiE. There are three States — Maine, North Dakota, and 
Kansas — which have absolute prohibition. 

Mr. Hough. Without the right to sell? Do they not sell an^'^thing 
in those States ? 

Mr. DiNwiDDiE. Not except for pharmaceutical purposes. 

Mr. McNary. They sell as freely in Maine as they do anywhere. 

Mr. DiNWiDDiE. Mr. Littlefield would tell you differently from that. 

Mr. McNary. I do not care what he would say; I have been there 
and I know what I am talking about. 1 have been in Portland and 
Bangor and other cities in Maine, and the saloons there are as free and 
as open as they are in the State of Massachusetts. 

Mr. Hough. There is a place in each of these States where the citi- 
zen is entitled to have sent to him and to go and get a shipment of 
intoxicating liquors. If this law were to be passed it would nave the 
effect of discriminating in favor of another State against the State 
where the law would apply. Mr. Dinwiddie says that might be true 
in Ohio, but is not true in Iowa. I am not familiar with the law 
which he says is in force in Iowa, but if there is no law in force in Iowa 

Erohibiting the right to drink, certainly the individual who lives in 
>e Moines, Iowa, or in Ottumwa, can go to Sioux City or any one of 
many places and get his jug and take it back home, and if an^y law 
should be passed that would undertake to interfere with that right I 
apprehend that there is no doubt in the world that that would be held 
unconstitutional. 

If he has the right to do that he has the right to send to that place, 
or to send his agent, for he who does a thing through another does it 
himself. Thus with respect to an}^ State in the Union, where there is 
any point in the State where you can obtain liquor, whether you go 

{roui'self or whether you send; whether 3'ou send a man or send a 
etter, the effect of this would be to discriminate against the citizens 
of every other State. 

The effect of this bill, if it means anything, is to srv that a State 
may interfere with an interstate shipment prior to deliveiy to the 
consignee. If a State should see fit to interfere with a shipment prior 



HEPBURN BILL. 247 

to deliver}^ to the consignee, how is the constitutional right of the 
individual to receive for his own use to be guaranteed by the Consti- 
tution? Delivery to the consignee is absolutely necessary; aside from 
all other considerations or all other questions which would indicate 
this bill to be bad, delivery to the consignee is absolutely necessary to 
conserve that right. Now, 1 understand that Mr. Dinwiddle says it is 
not the purpose of this bill to interfere with that right; am I correct? 

Mr. DiNwiDDiE. The purpose of this bill is to give the opportunity 
to each State, under the proper exercise of its police powers, to enact 
and enforce, unhampered from without, its own legislation concerning 
this question. 

Mr. HotTGH. Let us not indulge in platitudes or general terms. I 
ask for a yes or no answer. 

Mr. DiNwiDDiE. I do not know that I would be compelled to give 
that. 

Mr. Hough. No; nor you need not. 

Mr. DiNWiDDiE. I said here, that after careful interrogatories sent 
out to many of the States to ascertain just what their legislation was 
on that subject, I received absolutely certain answers from upward of 
thirty States, to the eflFect that there was no attempt on the part of any 
of those States to abridge the right to import liquor for personal use. 

Mr. Hough. That does not answer the question; I will ask it again. 

Mr. DiNWiDDiE. I will answer it in this way, then. So far as I 
know there is no disposition on the part of any State to do it; but if I 
understand your contention, and if we have to admit, after reading 
Vance v. Vandercook, that if a State attempted to do that, it could not 
do it, if a right to import liquor was a right guaranteed by the Con- 
stitution of the Unitea States, such State legislation would fall. So 
that it does not make any difference whether there is any such attempt; 
uijder the decisions of the Supreme Court, as you interpret them, a 
State can not do it. 

Mr. Hough. That is not an answer. It makes no difference what 
the intention of the State is. I ask you if it is the purpose of your- 
self and others who are advocating this measure to interfere with the 
shipment to an individual for private use? 

Mr. DiNWiDDiE. I have practically answered that. 1 can not tell 
what is in the minds of all tne advocates of this bill. 

Mr. Hough. Limit it, then, to yourself. Is it your purpose or 
desire, so far as this bill is concerned — not State legislation — to inter- 
fere with the shipment to an individual in a State for private use ? 

Mr. DiNWiDDiE. This bill is not legislation in the sense 

Mr. Hough. I presume that I can not get an answer. 

Mr. DiNwiDDiE. This bill is designed to take down the bars so that 
the State legislation will be effective. 

Mr. Hough. Now, I have objected to platitudes a while ago, or 
general terms. I will assume, for the purposes of the next question, 
that you are not in favor of interfering with the right of the individ- 
ual to have shipped and to receive for nis own use. If you pass a law 
which will give the State the right to interfere with the shipment 
before delivery, does it not interfere with the right of the individual 
to receive for his own use? 

Mr. DiNwiDDiE. 1 should not think so, because you say that under 
the Constitution a man has a right to import for his own use. 

Mr. Hough. I am talking about your purpose. The question is, 



248 HEPBURN BILL. 

Would it not have that effect, of preventing that individual from 
receiving for his own use, if it could be enforced? 

Mr. DiNWiDDiE. I think not. 

Mr. Hough. In so far as the individual is concerned, according to 
your conception, the individual could receive for his own use even if 
the State stopped the shipment before it reached him ? 

Mr. DiNwiDDiE. The State does not stop the shipment before it 
reaches him if it is shipped for his own use. 

Mr. Hough. I will eliminate the question of purpose. 

Mr., DiNWiDDiE. Very well; if j^ou want to doctor it up. 

Mr. Hough. How can an individual who is entitled to receive for 
his own use receive it, in order to determine what he is going to do 
with it, if it is stopped before it gets to him? 

Mr. DiNWiDDiE. My answer is that 1 know of no State which stops 
it before it gets to him. 

Mr. Hough. That answer begs the question. 

Mr. DiNWiDDiE. No, sir; Judge Smith said that if it is apparent 
that it is for private consumption the State does not touch it. We 
passed a law in Ohio to tax saloons. We have also municipal local 
option and township local option in Ohio. Under the provisions of 
our law we always insert a proviso to the effect that the provisions of 
this law do not apply to liquors for personal or family use, except 
where a man's private residence becomes a place for public resort. 

Mr. Hough. None of the cases cited by Mr. Dinwiddie or anybody 
else create conditions which could not be operated upon by State laws 
if the State laws were enforced. The cases he cited of shipments to 
X, Y, and Z, and the transfers of the bills of lading at the place of 
delivery were according to all the authorities sales at those places, and 
they could be prohibited. 

Merely because there is a failure of the laws in some respect to be 
enforced, is no reason why Congress should come in and legislate. A 
proper law should and could be enforced. 

ADDITIONAL STATEMENT OF GAPT. JACOB L. BIELER, OF 
INDIANAPOLIS. 

Gentlemen: In conclusion I will say that 1 did not intend to take 
up more of your valuable time than 1 could reasonably ask as a citi- 
zen, but since hearing the argument of my friends on the opposite 
side, I would like to repudiate the insinuation made regarding anar- 
chists and socialists; I think it reflects on the loyal citizens which I 
have the honor to represent. 

I stand before you as a citizen of this great Republic by choice, but 
I challenge anybody to be a better American than I. 

When Americans were needed, 1 was there to defend, as my Hoosier 
friend and poet, James Whitcomb Riley, would say, '^Old Glory," the 
symbol of liberty. I also fought to free the blacks, but how does time 
change ? Here I stand before you after a period of forty years and plead 
with you not to make the whites slaves, and they will be when you take 
away the mental power to govern the bodily wants. If this bill passes, 
how long do you suppose it will be before these same gentlemen will 
come with another bill to prohibit the use of tobacco, and as I have 
witnessed, some of you gentlemen of the committee enjoy a good cigar 
as well as I do? 



HEPBURN BILL. 24^ 

Now, I am charitably inclined. 1 believe in the golden rule, "Do 
to others as ^^^ou would have done unto you." I do believe, however, 
that the gentlemen in opposition are sincere in advocating the passage 
of this bill, but if you will pardon me I will say that they forget if 
this bill should become a law that they will invite into their respective 
States the most deadly enemies of mankind the world knows, and that 
is cocaine and morphine, and I am informed by reliable sources that 
even now the sale of those deadly drugs is on the alarming increase in 
some of the prohibition States. Now 1, for my part, should I need a 
stimulant, would prefer a glass of beer or wine, and more particularly 
since you gentlemen passed the pure-food bill. I am also told that the 
State prisons and insane asylums in prohibition States are as crowded 
as in States where you enjoy freedom. 

Statistics will bear me out in the statements made, and nobod}^ should 
know better than our friends, Mr. Wilbur Crafts and Rev. Mr. Din- 
widdle, who are at the head of the so-called International Reform 
Bureau of Morals. These being the facts, why pass this bill? Is it 
only to satisf 3'^ their hobby ? As long as barley and hops grow beer 
will be made, and if made, it will be used. As long as tne grapevine 
produces that magnificent cluster the precious juice will be used in one 
form or another. As long as corn grows the bourbon will not only 
be used as a hair tonic, but also, as my friends on the opposite side 
would have it, for medicinal purposes only. Now, the theory of rav 
prohibition friends sounds like a great many isms, for instance, social- 
ism, which they talk so much about, even here in their arguments. 
Both isms ma}'^ sound pleasant to some ears, but when you get down to 
disect it it crumbles together like the Rock of Ages, there is nothing 
in it. 

Both isms are not practical. The Prohibition* party has, up to date, 
not made any statement how they would raise a revenue to maintain 
this great Government after bankrupting two-thirds of the business 
men of the country. The brewery and liquor business is an endless 
chain; it reaches from the shops in every line of business clear to the 
farmers. Now I will ask you how they will collect taxes from the 
men who had to sacrifice their worldly possessions? Besides, how 
many thousands and thousands of men will thev throw out of employ- 
ment, and how many women and children will be deprived of their 
former comforts? Now I ask them direct, will they allow their church 

Eroperty taxed to pay this enormous amount needed to carry on the 
rovernment? If so, who will pay the church taxes after half of the 
church members are ruined by their folly ? 

Now, if I am correctly informed, in a few months they will hold a 
convention in my home city, Indianapolis. Perhaps they will give us 
some light on this subject in their platform, and possibly they will 
show us how to reach the golden age, when all of us wiH become 
angels, and for that reason I would most respectfully recommend that 
you defer action on this bill until then. The eminent statesman, 
Thomas Jefferson, once proclaimed, *' I would rather die than to be 
deprived of my liberty;" and there is where I, and those whom I have 
the honor to represent, stand to-day. 



250 HEPBUBN BILL. 

STATEMENT OF MB. ADOLFH TIMM, OF FHILADELFHIA, SECRE- 
TARY OF THE NATIONAL GERMAN-AMERICAN ALLIANCE. 

Mr. Chairman and gentlemen of the committee, I beg leave to sub- 
mit to you a few facts: 

Since the National Gernlan-American Alliance has raised its voice 
against the passage of the Hepburn-DoUiver bills, we have received 
numerous congratulatory communications thanking us for the stand 
we have taken and wishmg us success. These communications came 
from many different sources, not by any means from German- Ameri- 
cans alone. They reflect, I believe, Mr. Chairman, the true sentiment 
of the people of this great Republic, and show that an overwhelming* 
majority — as has repeatedly been demonstrated in our national elections 
for prohibition candidates have always been ignominiouslj'^ defeated — 
is aaverse to prohibition. 

The great majority of our people trusts that our national legislators 
will not abridge the individual liberty of citizens, and will allow free- 
born members of a free communitv to eat and drink what they like. 
What would members of Congress think of a bill to regulate our inter- 
state commerce in such a way as to prohibit the transportation of a 
certain kind of clothing? It would be considered rediculous, and in 
the same manner we claim the right to choose what we shall eat or 
drink and shall not willingly have tnis right curtailed by any interstate 
commerce measure any more than we are willing to be told what we 
shall wear. Indeed, in my eyes, Mr. Chairman, the Hepburn-DoUiver 
bills are as rediculous as if they wished to prescribe the style in which 
one should wear one's whiskers. 

The few friends of * prohibition say that alcoholic drinks are a com- 
mon danger and that the Federal Government has a right to regulate 
the interstate shipment of liquors. The Federal Government has done 
this long ago on the revenue plan, and it is the recipient of enormous 
sums of money from these sources. What more can our Federal Gov- 
ernment be reasonably expected to do? Can it logically prohibit the 
shipment of an article to any part of the United States on which it 
has received revenue? Article II, section 8, paragraph 1, of the Con- 
stitution of the United States distinctly says that all duties, imposts, 
and excises shall be uniform throughout the United States, and, there- 
fore, certainly also implies the right of shipment of articles on which 
revenue has been received by the Government. 

Prohibitionists never would have thought of asking Congress to 
pass laws which would change our well-arranged interstate regulations 
to fit the purposes of a few fanatics if prohibition had not been a 
failure in many States. They thought to win State after State and 
then to make national prohibition an easy task which has failed; instead 
of winning more they have almost lost the little they had. This well- 
deserved defeat made them change their tactics. 

Prohibition is an experiment that has proved to be unsuccessful 
ever3^where. This fact alone should caution our national legislators 
to be careful and keep it out of national legislation in whatever dis- 
guise it may appear. Prohibition as a problem-solving method is out 
of existence, because in prohibition States prohibition never exists. 
1 heard a lady say at the last hearing, January 20, that standing at a 
railroad station in Virginia she saw cars being loaded with jars which 



HEPBURN BILL. 251 

contained whisk3^ The point of destination of these cars was a pro- 
hibition State. This statement in itself admits that prohibition is a 
failure. 

Prohibition in politics, Mr. Chairman, is a real danger to our nation. 
Its failure as a legislative measure has reduced it to a mere term, to 
which a few people cling who, by force of surroundings, have been 
driven into fanaticism, or who have overindulged at some period of 
their lives, and distrust their own weakness. These are the honest 
ones — more dispicable are those who make it a profession to preach 
what they themselves do not live up to. It would lead too far to relate 
instances. In my opinion, the ver3' few true believers of prohibition 
would find better and more becoming work in the educational field. 

Among the many communications the National German- American 
Alliance received were several from clergymen who do not need to fill 
their churches with the cry* for prohibition. Learned preachers have 
discussed the liquor problem from the pulpit and have come to the 
conclusion that a well-regulated liquor traffic is a greater aid to true 
temperance than prohibitory laws. This is a remarkable sign, for it 
signifies that the best church element of the United States is by no 
means in favor of prohibition. It is a pleasure to hear or read the 
sermons of ministers who do not regard the church as a tool of prohibi- 
tion. Praised be these men, who so fearlessly express their views on 
the liquor problem. They are real teaciiers, advisers, and educators 
to their congregations. They are the standard bearers of true relig- 
ion, the guardians against its drowning in sensationalism. 

Why is prohibition the real common danger? Because it pretends 
to be a remedy, while it is an evil in itself. If legislators intend to 
regulate the liquor traffic with prohibitoiy measures they may as well 
declare a state of lawlessness, because prohibition creates lawlessness. 
Prohibition and its offspring, local option, are a danger to juries and 
to justice. Here is one example of thousands: Judge James D. Wat- 
ters, of Belair, Md., according to the Baltimore Evening News, of 
October 9, 1903, blamed local option for lax juries, who will not 
convict liquor-law violators and thus become careless in all cases. The 
Judge said: 

I have nothing to say against the individual members of the jury, but it was a case 
of gross miscarriage of justice. The system of drawing juries provided by the law is 
as good as anj^ I can think of, and the trouble with the juries in our county does not 
lie there. It is an outgrowth of the local-option law which we have had here for 
20 years. 

As a matter of fact, the local-option law can not be enforced. The sentiment in 
the county is against it, and the people simply will not convict a man who sells 
liquor. We have tried it again and again, and always with the same result. Last 
spring the Law Enforcement League made a great effort, and they secured a num-ber 
of indictments, one against this very woman, Sevilla Neiman, but only succeeded in 
sending one lame negro to the house of correction for six months*. And it has 
always been the same. 

Now, when jurymen get in the habit of overthrowing the law in one class of cases 
they soon learn to do it in another. When they acquit men for violating the local- 
option law without any protest from the public, they imagine they can acquit them 
on other charges. They are the judges both of the evidence and the law, and they 
take that to mean that they can make the law suit their own ideas. The only 
remedy that I see is to get a high-license law, and then enforce it. 

This brings to light a very peculiar state of affairs. There are a number of * * speak- 
easies" in this town — ambrosia shops, they are called — and, in addition, almost 
every full-grown negro in the town is a walking liquor shop. They all sell it. And 
everyone of them is in favor of the local-option law, and would vote to continue it if 
the question was resubmitted. You see, if we got a high-license law, their occupa- 



252 HEPBURN BILL. 

tion would be gone. Thus we have the strange spectacle of the extreme temper- 
ance folk — the prohibition people — lined up side by side with the lawbreakers in 
favor of local option. 

This statement of Judge Watters characterizes prohibitory legisla- 
tive measures. And what effect would the Hepburn bill have if parsed 
and enacted? Would it not deprive citizens of prohibition States of 
privileges which Article IV, section 2, paragraph 1, of the Constitu- 
tion of the United States guarantees to all citizens ? The Constitution 
of the United States distinctly says: "The citizens of each State shall 
be entitled to all privileges and immunities of citizens in the several 
. States." Would it not be class legislation to take from citizens of 
certain States privileges which citizens in other States enjoy ? And the 
effect of the Hepburn bill would even go further. Law-obe3dng citi- 
zens in prohibition States who now order wet goods according to la^^ 
in original packages would be enticed to violate the law and get their 
drinks under another name. The most sanguine prohibitionist will 
not dare to say that this would be a be a benefit to good citizenship. 

Our great Republic represents the most advanced stage of civiliza- 
tion of all ages, because its founders have laid down the principles of 
liberty in its Constitution. These principles must be guarded if the 
United States are to remain a Republic, composed of free and sovereign 
people, not a dormant mass governed by a few fanatics and hypocrites* 
I can not cite better words than those of the immortal George Wash- 
ington, who foresaw the dangers that would arise to the institutions 
of liberty. In his farewell address, after thanking the people of the 
United States for the honors conferred upon him, he said: 

Profoundly penetrated with this idea, I shall carry it with me to my grave, as a 
strong incitement to unceasing vows, that heaven may continue to you the choicest 
tokens of its beneficence; that your Union and brotherly affection may be perpetual; 
that the free Constitution, which is the work of your hands, may be sacredly main- 
tained; that its administration in every department may be stamped with wisdom 
and virtue; that, in fine, the happiness of the people of these States, under the 
auspices of liberty, may be made complete by so careful a preservation and so pru- 
dent a use of this blessmg as will acquire to them the glory of recommending it to 
the applause, the affection, and the adoption of every nation which is yet a stranger 
to it. 

STATEMENT OF DR. WILBUR F. CRAFTS, SUPERINTENDENT OP 
THE INTERNATIONAL REFORM BUREAU, IN BEHALF OF THE 
BUREAU AND HIMSELF. 

Mr. Harrison, the paid lobbyist of the United States Brewers' Asso- 
ciation, instead of argfuing the merits of this bill, attempted to show that 
the extraordinary public interest in this legislation nad been worked 
up by falsehoods and illegal methods, the exposure of which he repeat- 
edly promised would ''startle and shock" this committee. With the 
legislative report of the Antisaloon League he submitted half a dozen 
of the publications of the Reform Bureau as the labeled ''exhibits" by 
which he would prove his charges. As the committee well knows, he 
has failed to "make good." 

His labored eflforts to prove that in a document sent out b}^ the 
bureau statements quoted from Mr. Joshua L. Baily and Mrs. Ella 
M. Thacher, who had visited nearly all the Homes, with reference to 
the Government beer halls, were falsehoods, did not even prove there 
were errors, such as creep into the most careful work of fallible men. 



HEPBURN BILL. 253 

I had thought that in the quoted statement of Mrs. Thacher that the 
canteen inside the Soldiers' Home at Hampton did not prevent the 
opening of 97 drinking places outside — this was several years ago, 
since which conditions have improved — might be a misprint for tfcT, 
but two of the most reliable citizens in that town confirm the accuracy 
of the higher figure. And so the claim that "shocking" falsehoods 
were the means used to bring support to the bill falls flat. 

The claim that the people are not really in favor of this measure, but 
are asking for it only because our bureau and other organizations ask 
public support, is too trivial for serious consideration. We but inform 
the people what the bill is and what it would do, and so serve as a 
medium of expressing public sentiment, which already exists wherever 
in any State efi'orts have been made to enforce no license. The reason 
for the imperfect enforcement of prohibitory laws, so often alleged on 
the other side, is that citizens who are able and willing to restrain local 
liquor dealers have become weary of fighting the whole power of the 
Kational Government, which has reenforced the saloons by its "inter- 
state commerce" powers. 

When the nation calls off these dogs and restores local self-govern- 
ment on the liquor (][uestion, the spreading area of no license will 
increase yet more rapidly. We do not seek: to prevent the importa- 
tion of liquor^ for private consumption, and no one has met my chal- 
lenge at the opening of these hearings to cite any case where such 
imports have anywhere been interfered with, but we do ask that Con- 
gress will refuse to allow its interstate commerce powers to be longer 
used to enable outsiders to nullify State liquor laws by selling liquors 
to speakeasies. 

I wish now to introduce for the concluding argument of this hearing 
Rev. O. R. Miller, field secretary of the International Reform Bureau, 
ivho was chosen to this office because he had bravely enforced the 
liquor laws of Massachusetts against its liquor dealers. He has traveled 
widely, and has observed in many States the tricks that call for this law. 

ABGUMENT OF BEV. 0. R. MILLER, FIELD SECRETARY OF THE 
INTERNATIONAL REFORM BUREAU, WITfi HEADQUARTERS IN 
WASHINGTON, D. C. 

Mr. Miller. Mr. Chairman and gentlemen the committee, I speak 
as the representative of the International Reform Bureau, of wnich 
the Rev. Dr. Wilbur F. Crafts is superintendent and treasurer and of 
which I am field secretary. 

I am not here to discuss the legal side of this question, but to give 
^ome facts which may throw light upon the evils which this bill pro- 

f)oses to remove. Bishop Fowler says, ''If you flood a rat hole with 
ight vou spoil it for rat purposes." And so I believe that if a flood 
of light can be thrown upon the evil conditions in many States pro- 
duced or made possible by the weakness of our present interstate com- 
merce law in reference to the liquor traflSc, your committee will recom- 
mend the passage of this Hepburn bill, which will spoil the present 
interstate commerce laws for illegal rumsellers' purposes. 
» There are many reasons why the Reform Bureau, in cooperation with 
others, appeals to you to recommend the passage of this Hepburn- 
Dolliver interstate liquor bill to prevent the practical nullification of 



254 HEPBURN BILL. 

the will of a majority of the people in no-license and prohibition ter- 
ritory, through interstate commerce tricks. 

WIDE OBSERVATIONS OF THE SPEAKER. 

As field secretary of the Reform Bureau 1 have occasion to so up 
and down over the country, speaking in many different States; nence 
I have been able to observe the conditions which make this bill neces- 
sary. Allow me to give you, therefore, a few facts from various 
States which I have visited the past j'^ear, which will help to show you 
why we urge the passage of this measure. 

My observations have reached this past year from Eastport, Me., 
to Burlington, Iowa, and 1 have found a very general interest in this 
bill. People in many States have asked me, *' What is the prospect 
for the passage of the Hepburn liquor bill?" and I have always said 
that we nave every reason to believe that the present Congress would 
pass this bill because all the great reform organizations of the country — 
the Anti-Saloon League, the Reform Bureau, the W. C. T. U., and 
the National Temperance Society — are a unit in urging its passage. 
Each of these societies has done much to arouse a great popular inter- 
est in this bill. 

Last summer I made a tour through the State of West Virginia, 
speaking every night for a month in all parts of the State, especially 
in the interest of this Hepburn bill; and I have done the same in sev- 
eral other States, and Dr. Crafts, superintendent of the reform bureau, 
in his addresses all over the country this past year, has also spoken 
in behalf of this bill. 

When on my trip through West Virginia last summer I found that 
the temperance people of that State everywhere were sorely grieved 
at the failure of the last Congress to pass this bill. In anticipation 
that the last Congress would pass this bill the temperance people of 
West Virginia, led by the Anti -Saloon League of that State, pressed 
for and secured the passage of a strong anti C. O. D. liquor law to 
forbid any person, firm, or corporation of that State shipping liquor 
C. O. D. to any illegal liquor dealer in any no-license territory in that 
State. It is a model law. 

WEST VIRGINIA ANTI C. O. D. LIQUOR LAW. 

The following is a copy of the splendid West Virginia anti C. O. D. 
liquor law, a similar law to which ought to be passed by every State 
in the Union. The Hepburn interstate liquor law will be of value 
only to those States which back it up by some such State legislation: 

A BILL regulating the shipment and sale of intoxicating liquors contrary to law, and providing a 

remedy therefor. 

Sec. 1. That any agent or employee of any person, firm, or corporation carrying 
on the business of a common carrier, or any other person, who, without a State 
license for dealing in intoxicating liquors, shall engage in the traffic or sale of such 
liquors, or be interested for profit in the sale thereof, or act as the agent or employee 
of the consignor or consignee of the same, or who shall solicit or receive any orders 
for the sale of any intoxicating liquors or deliver to any person, firm, or corporation 
any package containing such intoxicating liquors, shipped ** Collect on delivery," or 
otherwise, except to a person having a State license to sell the same, or to the bona * 
fide consignee thereof, who has in good faith ordered the same for his personal use, 
shall be deemed to have made a sale thereof contrary to law, and guilty of a misde- 
meanor, and upon conviction thereof shall be fined not less than ten nor more than 



HEPBUBN BILL. 255 

one hundred dollars, and may, at the discretion of the court, be imprisoned in a 
county jail not exceeding six months. 

Sec. 11. If any person shall make affidavit before any justice of the peace that he 
has cause to believe and does believe any spirituous liquors, wine, porter, ale, beer, 
or drink of like nature are being held, sold, or delivered in violation of the provi- 
sions of this act, such justice shall issue his warrant as provided in section 23 of 
chapter 32 of the code, and like proceedings shall thereupon be had as provided 
therein. 

You see this law is very liberal. It aflfects only illegal liquor deal- 
ers. It specifically provides that liquor may be shipped into any no- 
license town or county of that State to a private individual " who has 
in ^ood faith ordered the same for his personal use;" but if the same 
individual in a no-license town or county of that State was receiving 
one hundred or more jugs of whisky every week by express or freight, 
then any honest court would doubtless hold that the railroad or express 
company delivering it and the person receiving it were evidently vio- 
latipg the law, and would impose penalty accordingly. 

If a town or county votes out the liquor traffic, the State should 
assume that the people of that town or county want what they voted 
for, and hence should protect the will of the majority of the people 
by providing that so far as the State is concerned the traffic in 
that town or county shall cease, and so the State should provide that 
when any subdivision of its territory votes out the saloons no 
railroad or express company or individual should be allowed to send 
liquor to anyone in that no-license territory which was evidently 
intended for sale. 

WEAKNESS OF THE PRESENT INTERSTATE COMMEBiCE LAW. 

But now, under protection of the interstate commerce law, liquor 
dealers outside of W est Virginia can do what liquor dealers in the 
State can not do. The liquor dealers and the common carriers in the 
State are forbidden to ship liquor to illegal dealers in no-license towns 
and counties of that State, but outside liquor dealers and common 
carriers can ship liquor in the original pacKages into any part of the 
State, whether license or no license, for, according to the interpreta- 
tion of our present interstate commerce law by the United States 
Supreme Court, liquor dealers in one State can ship liquor in the 
original packages into another State, and such liquor does not become 
subject to the Taw of the State into which it is shipped until after it is 
delivered to the consignee; which simply means that it can not be 
seized or molested by the local officers until after it is delivered by 
the express or railroad company to the one to whom it is consigned; 
and this helps to nullify the prohibitory and no-license laws of many 
States. 

A bill to remedy this evil was first brought from Iowa by Mr. Silas 
Wilson, atid was introduced in the House by Congressman llepburn, of 
Iowa, and passed that branch of Congress on January 27, 1903, but it 
proved too late in the session to get it through the Senate. This was 
a bill in the right direction, but although the Reform Bureau worked 
hard for its passage, still it had some serious defects which might have 
jeopardized its constitutionality. But it has now been improved by 
the Anti-Saloon League and the Reform Bureau in the present Hepburn- 
Dolliver bill. The Reform Bureau has been trying to arouse a great 
popular interest in this important measure, urging the friends of this 



256 HEPBUBN BILL. 

bill even^where to appeal to their Senators and Congressmen at once 
in its behalf. 

Referring again to the West Virginia anti C. O. D. liquor law, let 
me say that it was this unfair discrimination against liquor dealers of 
their own State which caused prominent men of West Virginia to say 
to me when on my trip through that State last summer that had they 
not been assured that the Hepburn bill would pass in the last Con- 
gress, the last West Virginia legislature would not have passed their 
5 resent anti C. O. D. liquor law. It is therefore the very evident 
uty of the National Congress to back up the action of the State legis- 
latures in all such matters. Already nearly two-thirds of West Vir- 
I^inia is under no license, and under the present interstate commerce 
aw in many places in that State the shipping in of liquor in original 
packages from outside of the State has practically nullified the ex- 
pressed will at the ballot box of the majority of the people in such 
no-license territory. 

ORIGINAL PACKAGE NUISANCE IN NEBRASKA. 

W^hen on a long tour through the West last year I met a minister 
from Nebraska who told me that several years ago the people had 
voted out and driven out the saloons from every town in his county. 
But the outside rumsellers, under protection of the interstate com- 
merce law, began to ship in liquor in the original packages to illegal 
liquor dealers in such large quantities that finally the temperance 
people, realizing their helplessness, became discouraged and disgusted, 
and so voted back the saloons all over the county, simply because the 
United States Government, instead of siding with the great majority of 
the people of that county against the lawbreakers, practically sided with 
the local illegal liquor dealers and outlaws against the expressed will 
of the majority of the people. It is the duty of the National Govern- 
ment to back up rather than to break down State laws. 

EXPRESS OFFICE BECOMES THE TOWN RUM SHOP. 

In many no-license places in many States, under the present inter- 
istate commerce laws, the local express company's agent becomes the 
illegal liquor dealer of the town. When liquor is sold by the express 
agent it is usually done as follows: The soliciting agent of the whole- 
sale liquor fimi goes to the express agent and gets the names of all 
the old bums in town and consigns to each of tnem C. O. D. one or 
more bottles of liquor in the "original package." The bum knows 
that there is always a package of liquor at the express office for him 
which he can get at any time he wants it, and often liquor is consigned 
to fictitious names, and such liquor can be taken out by anyone who 
will pay the C. O. D. charges and sign the fictitious name to whom it 
is sent. The agent of the wholesale liquor firm arranges this with the 
express agent, who gets a certain per cent of all liquor thus delivered. 
This past year I have found these conditions in several States. 

SOLICITING SALES FROM HOUSE TO HOUSE. 

Sometimes the arrangement between the wholesaler and express 
agent is made by mail. Another method employed for violating the 



HEPBURN BILL. 257 

law is this: A wholesale liquor dealer in one State will ship to one of 
his agents in some prohibition territory in another State a large num- 
ber of original packages of liquor — bottles 6t beer, cases of T^ne, and 
demijohns of wnisky — and send a different bill of lading for each to 
his agent. Then the agent will canvass the town, explain the superior 
quality of the different kinds of liquor consigned to him, and then sell 
tne bills of lading to whoever desires the whisky, saying to them that 
he does not dare to take this liquor from the freight office and deliver 
to them lest he be arrested for selling liquor, but that they can take 
the bill of lading and get the package which the bill of lading calls for, 
and no officer would attempt to seize the liquor when in their posses- 
sion, knowing that they wanted it for their own use. By this method 
business is drummed up and people are encouraged to buy who would 
not otherwise have gone to the trouble to order liquor, and the will of 
the majority of the people is broken down. 

RUM SELLING EXPRESS AGENT AT WASHINGTON, PA. 

Probably the worst case of this kind which I have found anywhere 
in my travels was at Washington, Pa. — a no-licenae town of about 
25,000 population — where one of the local express companies has great 
quantities of liquor all the time in its office. There were boxes of 
liquorpiled higher than a man's head, and there were shelves all around 
the office with hundreds of bottles, or "original packages," waiting 
for the consignee to get dry, or for the pocket peadler to call for it. 
The express company had a team to deliver other goods, but there did 
not seem to be any effort being made to find the owners or consignees 
of the great quantity of liquor on hand and deliver the same. It 
seemed to be a mutual understanding with the express agent — the 
town rumseller — and his patrons that the liquor was not to be deliv- 
ered, but ''to be called for" as needed. One of the most prominent 
and wealthy men of that city complained bitterly of the scandalous 
work of that express agent, and asked if something could not be done 
to stop it. I went into that express office two or three times and 
examined conditions, and boldly charged the express agent with vio- 
lating the law, but he insisted that he was living within the limits of 
the law. But if Congress will pass this Hepburn- Dolliver bill, and 
Pennsylvania will back it up with some good State law like the West 
Virginia anti C. O. D. law referred to, that express agent, and others 
like him in no-license towns in that State, will have to go out of the 
rum business or go to jail. 

ORIGINAL PACKAGE NUISANCE IN MAINE. 

When on a lecture tour "way down East," in the State of Maine, 
last fall, I saw there the great need for the passage of this bill. As I 
have said, the present interstate liquor law protects liquor "in transit," 
or until it is delivered to the consignee. When at Portland, Me., they 
told me of the difficulties met with by the late Sheriff Samuel F. Pear- 
son in his noble and heroic efforts to enforce the prohibitory law in 
Portland and Cumberland County. 1 was told that sometimes whole- 
sale liquor dealers in Boston and other places outside of the State of 
Maine would ship a large quantity of liquor in the original packages 
to some illegal liquor dealer in Portland. The express company would 

H B— 04 17 



258 HEPBURN BILL. 

load up a wagon full of this liquor and start out to deliver it to the con- 
signee, and two of Sheriff Pearson's deputies would follow the express 
team, determined to seize the liquor the moment it was delivered to 
the consignee, the illegal rumseller. 

But as soon as the express condpany's driver saw that he was being 
followed by two deputies, he would whip up his horse and rush down 
one street, up another, across another, and through an alley, etc., 
trying to set away from the deputies. If he succeeded, he delivered his 
liquor to the low dive keeper, the consignee. But sometimes, after being 
followed bj'^^ the deputies for several hours around town and found no 
opportunity to secretly deliver his goods, the driver would take his 
load of liquor back to "the express office and unload it, and wait until 
2 o'clock in the morning, or some other unseemly hour, when, per- 
chance, the deputies were not watching, when, under cover of dark- 
ness, he would load up his liquor again and quietl}^ steal away and 
deliver it to the consignee, the proprietor of the '' low dive," the 
'' speak easy," or the ''blind tiger," or whatever other name you may 
call the illegal rum shop. 

I say it is a grievous wrong, a burning shame, an unpardonable out- 
rage, that the United States Government should make it so very diffi- 
cult for a State to enforce her own laws. Now, if this Hepburn bill 
E asses, for which we plead, it will greatly simplify the problem of pro- 
ibition in Maine. The main point of this Hepburn bill is that liquor 
shipped from one State to anotner shall become subject to local author- 
ity as soon as it passes the State line, which would mean that the 
sheriff of Cumberland County, Me., or his deputies, would not have 
to wait until a load of liquor was delivered to the consignee, but liquor 
evidently intended for sale could be seized in the freight car or freight 
office, or in the express office, or on the express wagon on the street, 
and confiscated. 

SEIZING LIQUOR IN TRANSIT. 

When I was at Skowhegan, Me., last fall, I called on Sheriff Lan^, 
the Democratic sheriff of Somerset County, who is enforcing prohibi- 
tion so grandl}^ in that county. He said to me: ''Mr. Miller, I hope 
that the reform bureau will press the Hepburn interstate liquor bill 
before Congress with all possible haste. We greatly need it in the 
enforcement of the prohibitory law of this State, as under the present 
laws we are not allowed to seize liquor ' in ti*ansit.' I have a lawsuit 
on my hands now for seizing in transit a big consignment of liquor 
evidently intended for sale. I ought not to have seized it till after it 
was delivered to the consignee; but then it is usually so much harder 
to find and seize liquor after it gets into the hands of the consignee; 
that is, the the illegal liquor dealer. I hope your bureau will rush the 
Hepburn bill." I received the same earnest appeal in substance from 
pronibition sheriffs and temperance workers all over the State when 
on my tour there last fall. Rev. Herbert N. Pringle, secretary of the 
Maine Civic League, said to me that this bill was so important to the 
State of Maine that he would like to come to Washington and speak 
at the hearing if it were possible for him to get away at the time. 

PROHIBITION IN MAINE. 

On my trip down through Maine last October and November I spoke 
in about thirty of the largest cities and towns of that State on "JHow 



HEPBURN BILL. 259 

high license and local option work in Massachusetts." As Massa- 
chusetts has the best hign license — local option — law of any State in 
the Union, and as 1 have lived in that State nearly fifteen years, and 
have been active in trying to help enforce the high-license law of that 
State, 1 can speak from practical experience and wide personal observa- 
tion with reference to it, rather than from theory or from hearsay. 
As our friends, the enemy, the brewers, the distillers, the wholesale 
liquor dealers, and their friends, have had much to say about the fail- 
ure of prohibition in Maine and elsewhere, I would like to say just a 
few words about the failure of high license in Massachusetts as com- 
pared with prohibition in Maine. 

When on my trip through Maine last fall 1 gave the people of that 
State a great mass of facts from my own observation and investigation 
in Massachusetts to prove six great facts concerning the workings of 
high license in Massachusetts, as follows: 

(1) High license does not drive out the low dives. (2) High license 
is constantly and flagrantly violated. (3) High license is hard to 
enforce. (4) High license increases drunkeness. (5) Hi^h license 
increases taxes. (6) High license increases political corruption. This 
is only a bare outline of my address. , My complete address has been 
printed by the Reform Bureau, and a copy of it will gladly be sent to 
anyone desiring it. 

PRESENT ENFORCEMENT OF PROHIBITION IN MAINE. 

I am glad to testify that prohibition in Maine to-day is being better 
and more generally enforced than at any previous time in the history 
of the State, and the people like it. The courts have begun to give 

I'ail sentences in addition to fines, and that has struck terror to the 
learts of the rum brigade. Last November when I was in Maine, I 
found that there were at that time about 100 of Maine's illegal rum- 
sellers in jail, some of whom were serving sentences of eight months 
in prison in addition to heavy fines imposed. No wonder the illegal 
rumsellers of Maine, and their friends outside of Maine, the brewers, 
the distillers, and the wholesale liquor dealers, are making such frantic 
efforts for resubmission in Maine, hoping to get prohibition repealed 
In that State. They had hoped that tne present strict enforcement of 
the prohibitory law nearly all over the State would turn many people 
against it; but the great mass of the people seem delighted with the 
present conditions and want them to be continued. Many people of that 
State who supposed it impossible to strictly enforce the law, nave been 
convinced this past year that it is easily possible to enforce the law 
when the courts and oflScers do their duty. And many people of that 
State, who a year or two ago favored substituting high license for pro- 
hibition, have given up that position, and are now standing firm for the 
old prohibitory law and for its strict enforcement. The old Pine Tree 
State still stands at the head of the prohibition column. 

When the Hepburn interstate-liquor bill was before the Fifty- 
seventh Congress, in the House of Kepresentatives, on January 27, 
1903, Congressman W. I. Smith, of Iowa, made a strong speech in 
favor of it. We quote part of his speech: 

SPEECH OF CONGRESSMAN SMITH. 

Mr. Speaker: In the case of Leisey against Hardin the Supreme Court of the United 
States held that under the interstate-commerce clause of the Federal Constitution 
one had a right to ship liquor into a State in original packages and there sfeU it in 



260 HEPBUJBN BILL. 

unbroken packages. Immediately after the decision was handed down Congress 
passed the Wilson bill, which provided that upon the arrival of liquors in a State 
they should be Subject to the police regulations thereof. The United States Supreme 
Court, in the Rhodes case, held that ** arrival** meant delivery to the consi^ee. 
Under this holding a practice has grown up in Iowa by which a nonresident shi{>B a 
large number of juss into the State, addi^ssed to himself, and then his soliciting 
a^ent goes about selling these liquors At retail in the town, and simply transfers the 
bills of lading, thus carrying on the retail liquor business in that dry town in viola- 
tion of the will of the majority of the people, and using the express office as a retaQ 
liquor place. 

So flagrant has this become in Iowa that in one of the towns in Colonel Hepburn's 
own county, when I had the honor of presiding upon the bench in that district, as 
high as 100 jugs at a time were found in a single express office, addressed by the 
consignor to himself as consignee, without any intention that they should ever be 
delivered, except to the several assignees of ttie bills of lading that might be found 
after the arrival of the goods in the state. 

Under the decision in the Rhodes case these liquors were not subject to seizure and 
could be kept there in large quantities in the office of the express company, and 
retailed from there to whoever would pay the C. O. D. charges, the value of the 
liquor, and the cost of transportation. 

There are people even in Iowa who demand intoxicating liquors. But we say that 
the majority of the people in a community have the right to say whether this traffic 
shall be conducted there or not. 

Now, if we do not want this traffic carried on, we ought to have the right to prevent 
a nonresident lowan sending liquor to himself in a dr^^ town, insisting that under 
the decision in the Rhodes case they are entitled to immunity from seizure until 
they are delivered to the consignee, when he does not intend to receive them, and 
retailing these liquors to whoever will come up and advance the value of the liquor 
and the cost of transportation. 

This bill will not prevent any local citizen ordering liquor for his own use from 
another State by express, but it will prevent express agents turning their office into 
a rum shop and thus breaking down the will of the people where they have driven 
the saloons out. 

ORIGINAL-PACKAGE NUISANCE IN KANSAS. 

As further evidence as to the way liquor men are breaking down the 
will of the people in prohibition territory, I submit herewith a clipping 
from a Kansas paper of recent date, which speaks for itself: 

BXPBESS-OFFICB SALOONS — ^UNCLB SAM THINKS HB HAS BBBN DBFRAUDBD OF HIS TAX. 

Under a Kansas City date line of February 4, 1904, it is said that the Government 
at Washington has begun a war upon whisky dealers in Kansas City who have been 
shipping liquor to Kansas in an irregular way. Two Kansas City dealers have already 
been indicted and arrested. It is said that twenty or thirty dealers will be indicted. 

The internal-revenue laws of the United States provide mat — 

**Any person who shall carry on the business of retail liquor dealer without having 
paid the special tax as required by law shall, for every such offense, be fined not less 
than $100 nor more than $5,000, and shall be imprisoned not less than thirty days 
nor more than two years.** 

The Government officials contend that this law has been violated in this manner: 

The express agent in a Kansas town would be the selling agent of the Kansas City 
dealer. He would receive from the dealer, say, a dozen cases of whisky, each contain- 
ing 4 quarts, the case valued at $3.50. Each case would be addressed to 'some ficti- 
tious name. It would not be shipped in the express agent's name, because he would 
then be an out-and-out whisky dealer. He has always in his express office a half 
dozen or more cases. When anyone in the town wished to buy whisky he would 
go to the express agent, who would say: 

'^ Well, there's a case here addressed to So-and-so. He has not called for it, so if 
you pay the express charges of $3.50 I'll let you have it." 

The agent would keep 50 cents for his commission and remit $3 to the dealer, who, 
upon receipt of it, would ship another case under the same name to the agent. Thus 
the express agent was really the agent of the dealer, and the more he sold the more 
he made. 

This method of whisky selling was so successful that whisky firms which followed 
it sprang up like mushrooms in a night, and there are 20 or 30 of them here. One 



HEPBUBN BILL. 261 

which had been in existence a year shipped an average of 400 cases a day by one 
express company, and there are five different express agents in Kansas. This method 
of whisky selling was known as '^shipping on suspicion/' 

The business ffrew to such proportions that in Kansas nearly every express office 
was the town saloon. 

The Government at last took hold of the matter, because this method was losing 
the Government thousands of dollars in taxes annually. The special tax for everv 
place where whisky is sold in Quantity less than 5 gallons is $25 a year, and if each 
of these express agents had paia that tax it would have doubled the Government's 
revenue from this source in Kansas; therefore John W. Yerkes, Commissioner of 
Internal Revenue, directed that the war upon this species of business begin, and 
many extra revenue inspectors were sent into Kansas and loc&l-option counties in 
Texas to gather evidence. 

The Supreme Court of the United States has already passed upon this sort of illegal 
whisky selling. Years ago two whisky dealers in Kansas City (Shriver and Cline) 
were arrested for this offense. In their cases the United States Supreme Court held 
that where a Kansas City house shipped pursuant to a bona fide written order, then 
the sale was made in Kansas City, and the dealer's special license authorized him to 
make the sale. But with no written order, then the sale was made at the place of 
delivery. The court held that the fact that an express agent sent a list of names, or 
directed the shipment, that was not a bona fide order. 

The Supreme Court also held in these cases that if a corporation violates this law 
all its managing officers are liable. 

The Kansas City liquor dealers were indicted by a Federal grand jury, sitting at 
Wichita a few days ago. The indictments were sent to the office of the United 
States district attorney in this city by J. S. Dean, United States attorney for the dis- 
trict of Kansas. The arrest of the two men followed. 

It is the understanding of the district attorney that the two indicted will be tried 
at the adjourned term ofthe Federal court in K!ansas City, Kans. The adjournment 
term begins February 15. — Kansas Prohibitionist. 

The enemies of all no-license and prohibitory laws at this hearing 
have made frequent references to the injurious effects to a town of 
no-license or prohibition. I give herewith an article by W. P. Fer- 
guson, a staff correspondent of The New Voice, of Chicago, in 1899, 
who visited at that time Delhi and Walton, N. Y., one a license, the 
other a prohibition town. The results are quite remarkable, but no 
more remarkable than could be shown by manjr other instances in other 
parts of the country. This ought to be a sufficient reply to the charge 
made by the brewers and their friends that prohibition always injures 
a town. 

A STUDY IN LOCAL PROHIBITION — RESULTS OP LICBNSB AND NO-LICEN8B POLICIES IN TWO 
NEW YORK STATE VILLAGES. 

Delhi, N. Y., January 7, 1899, — I have been spending the dav in this village, 
which is one of the most interesting and besautiful in the State, and have been study- 
ing a contrast that is presented between this and the neighboring village, Walton, 
something less than 20 miles down the Delaware River. Some twenty-five or thirty 
years ago the villf^e of Walton adopted no-license, which policy has been generally 
followed by the village and the township ever since, the law being better enforced 
year by year, and especially well during the last ten years. Shortly after the adop- 
tion of no-license in Walton, Delhi, in 1874, adopted no-license, but after a year or 
two abandoned the policy, and has nearly always voted license since. At the time 
of the adoption of no-license by Walton it was confidently predicted that it would 
prove the ruin of the village, and many business men of Delhi supported license on 
the ground that the business interests of the village demanded it. 

In Walton there have been one or two short periods of license, and in Delhi similar 
periods of no-license, while at times at Walton the enforcement of the law has been 
^ slack; but the two villages and the townships stand as examples of the comparative 
' results of the two policies followed for a considerable term of years. 

Before giving results in detail I ought to indicate the comparative advantages 
possessed by the two villages. Walton, situated on the main line of the Ontario and 
Western Railroad, has better railroad facilities than Delhi, which is situated on a 
branch road; but tiiis is more than counterbalanced by the fact that Delhi is the base 
of supplies and the shipping center of five or six surrounding townships that consti- 



262 HEPBURN BILL. 

tute one of the richest dairy regions in the whole country. Delhi, too, has had the 
advantj^e of being the home of a large number of wealthy and influential families, 
is the county seat, and consequently the place of residence of well-paid county 
officials, and the court center to which comes, almost monthly, a small army of 
attorneys, witnesses, and jurors, all of whom pay tribute to the business of the 
village. Delhi is also a summer resort of considerable popularity, and- annually 
receives thousands of dollars from that source. 

The difference in the type of population, so far as the two places differ, is in 
Delhi's fevor, her inhabitants being very largely of sturdy Scotch descent. 

The two villages have been rivals, and, so far as I can discover, Walton's one real 
advantage has been freedom from the legalized liquor traffic. The outcome of their 
rivalry is as follows: 

POPULATION. 



1870. 



1880. 



1897. 



Delhi (Village)... 
Walton (village). 



1,223 



1,384 
1,389 



1.564 
2,299 



1,932 
3,084 



Gain in population of license village in 27 years, 57.9 per cent. 
Gain in population of no-license village in 27 years, 256.1 per cent. 



Outside the villages, the population of this whole section of the State is decreas- 
ing; but in the 20 years from the census of 1870 to that of 1890 the rural population 
of Walton township (not the village), which was under no license during nearly the 
whole period, decreased only 4.5 per cent, while in Delhi township, under license 
nearly all the time, the decrease was 20.7 per cent. 



BUSINESS PROSPERITY. 



Twenty years ago Walton was noted for its lack of business enterprise, and a good 
deal of the business that usually is considered local "went out of town,'* while Delhi 
was the center of a large trade. To-day, according to the reports of the commercial 
agencies, Delhi haa business capital invested to the amount of about $300,000, while 
Walton's investments in home business amount to about 1500,000.. 

According to a statement which I have upon the authority of a Delhi business 
man, and which I have verified as far as it is possible to do so in the absence of sys- 
tematic records, the business failures of Delhi nave, during a little over twenty years 
past, amounted to $1,000,000 ot unpaid liabilities, or more than three times the 
present invested capital. In Walton I was unable to learn of a single failure of any 
importance for ten years past, while I am assured, by those who have had the best of 
opportunity to know, that the total of unpaid liabilities of the failures in Walton for 
twenty years back would not exceed $100,000. 

Ten years a^o Delhi still held its position as the money center of the county, and all 
large transactions were adjusted there. To-day it is conceded to rank below not 
only Walton, but two or three other villages of the county. - It is a fact worthy of 
mention that of the 8 incorporated banks here in Delaware County, 6 are situated 
in no-license towns. 



BUSINESS AND MORALS. 



"Even though there have been years," said a Walton business man to me yester- 
day, "when the law has been very poorly enforced in Walton and a good deal of 
liquor has been sold, one benefit of no license has always existed — the Dusiness has 
been under the ban, and both selling and drinking have been looked down upon. 
As a result, our young men have grown up sober, and a drinking man among 
Walton's business men is hard to find. One of the results of this has been that we 
have no business crashes caused bv gambling losses, and another is that there has 
been, so far as I recall, only one defalcation in the village during the past ten years." 

The testimony regarding Delhi is in marked contrast. Not only selling, but drink- 
ing, has had the sanction of respectability here. A representative of one of the 
largest business interests in the United States, a man who has had opportunity to 
know Delhi both financially and socially, said a few days ago: "Conditions in busi- 
ness circles at Delhi are almost beyond belief. I know of no other town where 
drinking and gambling are so common among business men." Another gentleman, 
a life-long resident of the place, said to me sacily: "I have seen more than a score of 
young men in business in this village go to financial and moral ruin through drink 



HEPBURN BILL. 263 

and its attending vices. Many of them have been of the best families and among 
our brightest and most promising boys.'* 

Defalcations have been numerous, and some of them very grave. The only bank 
in the village is to-day in a receiver's hands, and the leading manufacturing industry 
is suspend^, owing to irregular transactions that business and professional men here 
do not hesitate to assure me were the direct residt of drunkenness and gambling on 
the part of officers of the bank and members of the manufacturing company. 

PUBLIC HEALTH. 

I was at first disinclined to believe that license or no license would show marked 
results in the public health of the two towns; but an examination of the vital statistics 
in the offices of the town clerks of the two townships shows that the average death 
rate for the township of Walton for the last ten years has been 14.35 per thousand, or 
1.65 less than the probable rural death rate fixed by the United States Census Bureau; 
while the average death rate for the township of Delhi during the same ten years 
has been 17.26 i)er thousand, or 1.26 above. 

LIQUOR REVENUE AND TAXATION. 

Each of the towns has a bonded debt, assumed to aid in building the New York 
and Oswego Midland Railroad, some twenty-five years ago. Delhi's debt is $222,000, 
or about $1 to each $4.50 of taxable property in the town at the time the deJbt was 
assumed. Walton's debt is $138,000, or about *1 to everv $5.60 of property at the 
date of assumption. Keeping this in mind, the following fact is worthy of considera- 
tion. The tax rate of the township of Delhi, the town that has regularly received 
liquor-license revenue, has for the past ten years averaged $20.10 per thousand, while 
the average rate in Walton, where there has been no license, has been $15.19 per 
thousand. 

INCREASE OP PROPERTY VALUES. 

It is worthy of notice that the assessed valuation of the town of Walton has in the 
ten years past risen from $846,911 to $1,420,290, an increase of 67.6 per cent, while 
Delhi's valuation has increased only from $1,094,448 in 1899 to $1,204,062 in 1898, or 
9.1 percent. 

Delhi has built only one business building of any importance on her main business 
street in ten years. Walton has erected half a dozen substantial and valuable brick 
business places within the same time. 

Delhi furnishes for its school children a public school building that would not be 
worth $3,000. Walton has for years maintained a union free school, for which it has 
built and furnished within the past few years a splendid building at a cost of nearly 
$50,000. 

Walton, during the past twelve years, has expended, as nearly as I am able to learn, 
about $45,000 in building churches. Delhi has built no new churches, and $10,000 
would be a liberal estimate of all the money spent in church repairs during that 
period. 

DRUNKENNESS AND CRIME. 

It ou^ht also to b^ added that in Walton there has been only one arrest for drunk- 
enness m sixteen months, and that the criminal expenses of the village have been con- 
stantly reduced. A few years ago justice fees in criminal cases averaged from $450 to 
$500 per year, while now a police justice attends to all criminal business and receives 
a salary of $125 per year for work that at the old rate of fees would not amount to 
$100. In Delhi drunkenness and petty crime are common, and criminal expenses 
show no decrease. 

It may not be true that all of Walton's greater prosperity has been due to no license; 
but, though I have examined conditions here with the utmost care, I am unable 
to find any reason why Delhi with her many natural advantages, with her naturally 

Erogressive and industrious citizens, and with her splendid local history, should 
ave been so outstripped by her rival, save that she has paid to the liquor traffic a con- 
stant tribute from the wealth of her people and the manhood of her citizens. 

The last illustration was from an Eastern State, let me give you a 
similar illustration from a Western State, or rather from towns in two 



264 HEPBUBN BILL. 

States — one a high license, the other aprohibition State. The follow- 
ing article is from the New Voice, of Chicago, of November 23, 1899: 

AN EXAMPLE OP THE SUCCESS OP PEOHIBITION. 

Fabgo, N. Dak., November 10, 1899, 
The border of a prohibition State is not the most favorable place to study the 
effectiveness of prohibitory legislation. It is too near the base of liquor supply. It 
is too convenient for the bibulously disposed to step into the adjoining State and 
dury a jujg full of intoxicants back in his hand or his stomach. This is emphatically 
the condition in the twin cities of Fareo, N. Dak., and Moorhead, Minn. These 
towns are situated on opposite sides of the Red River of the North, and transit 
between them is made easy by ample bridge provision across the small stream. 
Fargo is under the stringent provisions of North Dakota's prohibitory law, adminis- 
ter^ by a conscientious and fearless mayor. Moorhead operates saloons under 
Minnesota's high license statute. The first building as you cross from the Fargo 
side is a saloon, take which bridge you will. To still further facilitate matters the 
more enterprising of the Moorhead groggeries run free conveyances to Fargo, each 
covered with flaming advertisements, ofiering to take the thirsty individual to the 
other side of the river and deposit him at the door of a liq[uor dispensary without 
cost. These * * jag wagons * ' ply continuously between the cities and, naturally, dump 
a large cargo of drunkenness into Fargo daily, tending to increase the crime of this 
city, and reduce its productiveness 2^a thrift. While these conditions reduce the 
dinerences between the cities, and make Fargo suffer greatly from a business in 
which she is not engaged, yet a study of the two places is an interesting and instruct- 
ive lesson. 

Until 1889 both cities were under the same law, practically, as touching the knotty 
liquor problem. Neither city had pavements, sewers, nor water systems. In 
November— ten years ago — 1889, Dakota went Prohibition. That ** killed" Fargo. 
Many bright and experienced men gave testimony to that &u;t. The sheep would, 
graze, they said, over the site of the former city, and Moorhead would be the metrop- 
olis oif the Red River Valley. That was prophesy. The following history is an open 
book: 

POPULATION. 

Pettibone's directory of the two cities gives Fargo a population of 10,814 and 
Moorhead 3,862. This, however, in the face of the fact that about five years ago 
Fai^ was almost wiped off the map by a disastrous fire. This same directory, com- 
paring with its previous issue, shows that Fargo's population increased more than 
six times as fast as that of her sister city in 1898. 

PUBLIC IMPROVEMENTS. 

The city clerk of Moorhead and the city auditor of Fargp are the ofi&cials of the 
respective cities who have charge of the records of public improvements, and each 
has been very courteous and opened his books cheerfully for the inspection of the 
New Voice representative. Moorhead has 11 blocks of cedar pavement, somewhat 
under 1 mile. Calling it a full mile, for courtesy, it is 1 mile of pavement per 3,862 
population. Fargo has 16 miles of pavement, or 1 mile for each 676 of her population. 
Moorhead has 5} miles of water mams, or 1 mile for each 702 of her population, while 
Fargo has 40 miles, or 1 mile for each 270. The business man will appreciate the 
effect of this fact upon relative fire protection and insurance rates. In seWers, Moor- 
head has 4} miles, or 1 mile for each 858 population as against Fargo's 32 miles, mak- 
ing 1 mile for each 338. Prospective residents who value health will not overlook the 
comparative sanitation herein shown, which fact may, perhaps, partly account for 
the more rapid growth of the prohibition city. 

PBIVATB IMPBOVSMEMTB. 

Ofiicial data touching private improvements are not available. The above statis- 
tics as to comparative growth, however, will serve as an index to thj^ item. In an 
extensive drive through Moorhead I have failed to discover a single dwelling or 
business house in process of construction, and diligent inquiry of several residents 
furnished no clew to such an enterprise. Mayor Jonnson, of Fargo, gives assurance 
that his estimate of more than a million dollars expended in private buildings in this 
city during the past three years is conservative, and as good as ofi&cial. In both 



WEPBTTBN BILL. 



265 



residence and business parts of Fargo building is active. An interview with one 
man who is putting up a business block in Fargo revealed the fact that he has been 
in business in Moorhead since 1882. He has lived to see taxes increase, business 
diminish, and property values dwindle, and he has determined to put up a $11,000 
building in Fargo, and come to this city to retrieve his losses. He states that the 
Moorhead saloons have stolen his business, and that they are after his children as 
soon as they step from his door, and he has determined to change both his place of 
business and his residence, and heartily wishes that he could (fispose of his Moor- 
head real estate at a sacrifice. 

CITY DKBT. 

The thoughtful business man will immediately conclude that, with all these public 
improvements above referred to, and with the aisastrous fire which destroyed much 
of the property belonging to the city, Fargo must be much more incumbered with 
debt than Moorhead. And, when he contemplates the value of the pavements, water 
system, and sewerage, he will not be disposea to complain — nor will he find cause to 
do so. With all the superior advantages afforded in Fargo, the city debt is 7.8 per 
cent of the assessed valuation, while Moorhead, the licensed city, watered by the 
dame river, supported by the same fertile soil, afforded the same transportation priv- 
ileges, and fully as favorably environed in every way, has a city debt of 20.5 per cent, 
or over one-fifth of the assessed valuation of her property. 

So Moorhead is biggest in some particulars. Mayor Johnson's figures show the per 
capita city debt in Fargo to be but $19.50, while Moorhead boasts city obligations 
aggregating $44.79 per capita, and Moorhead' s city tax rate is over 5 per cent higher 
than that of Fargo, ampunting to 2.183 per cent, as against 1.598 per cent in the pro- 
hibition town. 



Though Fargo is nearly three times as large, and enjoys such uncomfortable prox^. 
imity to the 46 saloons of Moorhead, the arrests in Fargo were but slightly more 
l^n those of Moorhead, numbering 662, as shown in the last annual report, as com- 
pared with 542 on the Minnesota side. This was one arrest for each nineteen popu- 
lation in Fargo, and one for each seven in Moorhead. An interview with the police 
magistrate of Fargo elicits the statement that it is probable that not less than two- 
thirds of the arrests in this city are the result of Moorhead whisky. A detailed 
statement of causes showing 212 to be drunks, 232 vagrants, and 3 others from causes 
which most usually result from intoxication leads to the conclusion expressed. 

Tabular comparison. 



Faigo. 



Moorhead. 



One mile street pavement for each 

One mile water main for each 

One mile sewers for each 

City debt, per capita 

Ratio of city debt to assessed valuation 

City tax levy 

One arrest for each 

Assessed value of property, per capita . 



676 population. 

270 population. 

338 population. 

$19.50. 

7. 8 per cent. 

1. 598 per cent. 

19 population. 



3, 862 population. 
702 population. 
858 population. 

20. 5 per cent. 
2. 183 per cent. 
7 population. 
$219. 



But what becomes of the $23,000 which the 46 saloons of Moorhead pay into the 
city treasury? Did that money not build sidewalks, erect waterworks, and pay for 
public improvements? Treasurer Martin Straight is authority for the statement that 
they never paid for a single plank in a sidewalk; that the saloon system certainly 
consumes its entire payments to the city, if, indeed, it is not an expense which must 
be in part borne by the regular taxes of the property. Interviews with various pro- 
perty holders reveal a division of opinion on this proposition, but when the definite 
figures were attainable, all, regardless of their personal opinions, were forced to say 
that they had paid their full pro rata for every improveiiient which the city owns, 
and that they could point to no improvement which the license fees had helped to 
provide. 

LICENSE ALWAYS A FAILUBE. 

We have had high license in Illinois five years, and while it is a success as a 
revenue measure it is an undisguised failure as a temperance measure. It in no way 



266 HEPBURN BILL. 

checks the consumption of intoxicating liquors as a beverage, nor does it in the least 
degree lessen the evils or crimes from such use. The dives and dens, the barrel 
houses and thieves' resorts, areas bad and frequent in this city to-day, after five years 
of high license, as they ever were. — Chicago Daily News. 

If any one is still in doubt as to the benefits of prohibition, let him 
consider carefully the following comparisons: 

High License Lincoln v. Prohibition Topeka, 1901. 

TWO CAPITAL CITIES LYING ALMOST SIDE BY SIDE, ALMOST THE EQUAL IN SIZE, AND 
WITH EQUALLY FAVORABLE SURROUNDINGS — THE DEADLY PARALLEL. 

Lincoln, Nebr., has 40 saloons, each of Topeka, Kans., has not had a licensed 

which pays the city $1,000 license yearly, saloon for nearly twenty years. Total 

Total revenue, $40,000. yearly saloon revenue, not a cent. 

Lincoln has numerous unlicensed joints Topeka at the present time, June, 1901, 
and low dives. Hiurh license has not has very few, if any, joints or dives- 
suppressed them. High license never Prohibition has reasonably well sup- 
does suppress them. pressed them. 

Lincoln declares she must have her Topeka absolutely refuses to be a part- 
saloon revenue to pay her public school ner with the unrighteous traffic in order 
teachers and keep uj) her schools. to keep up her schools. 

Notwithstanding Lincoln's income from Topeka s total levy, without resorting 

taxation of vice her average levy to pay to the protection and taxation of vice, is 

the expenses of her schools is nearly 2 but thirty mills. This for city purposes 

mills higher than that of Topeka. Her only, exclusive of the school tax levy for 

levy for city purposes only is 37 J mills. the support of her public schools. 

Lincoln pays in annual salaries to her Topeka pays in annual salaries to her 

city superintendent of schools and to her city superintendent of schools and to her 

principal of the high school $4,200. principal of the high school, $4,300. 

Lincoln, despite her boasted saloon Tokeka, without any saloon revenue 

revenue "for school purposes," pays ** for school purposes '* or for any other 

her — purpose, pays her — 

(1) High school teachers au aver- (1) High-school teachers an aver- 

age per month ( nine months ) age per month ( nine months ) of $83. 33 

ofbut $75.00 (2) Principals of graded schools 

(2) Principals of graded schools an an average per month of 89. 18 

avenige per month of but . . 70.33 (3) Graded school-teachers an 

(3) Graded school teachers an average per month of 57. 23 

average per month of but . . 52. 73 General average for prohibition 

Topeka 76.56 

General average for high-license 
Lincoln 66.02 

Monthly excess in favor of Topeka's teachers 10. 58 

Yearly excess in favor of Topeka's teachers 95. 04 

Wherein does saloon revenue "for school purposes" profit the teachers of Lincoln, 
Nebr.? 

THIS IS HOW LICENSE BENEFITS A CITY. 

Cambridge, Mass., had licensed saloons 1876-1886 — ten years. No license, 1886- 
1896— ten years: 

Gain in population, ten license years 11, 280 

Gain in population, ten no-license years 21, 985 

Gain in new houses, ten license years 1, 516 

Gain in new houses, ten no-license years 3, 325 

Loss in taxable property, ten license years $3, 190, 783 

Gain in taxable property, ten no-license years $23, 702, 030 

Gain in savings bauKs deposits each license year $155, 333 

Gain in savings banks deposits each no-license year $366, 654 

Number of workmen employed by street department: 

Gain in ten license years 32 

Gain in ten no-license years 90 

Read it again. See how no license benefits a city. 



HEPBURN BILL. 267 

During this hearing these brewers and their friends have made 
frequent references to the beneficial effects of beer. Mr. Oberman, 
the Baltimore brewer, said that the brewers were greater factors in 
temperance than the temperance cranks would ever become, for as the 
consumption of beer increases the consumption of distilled liquor 
decreases, and that if the nervous, high-strung business man of to- 
day would drink more beer he would be better off. Another speaker, 
said, "Beer is not an intoxicant;" another, "A glass of. beer is a good 
friend," etc. 

I want to call your attention to a document of the International 
Reform Bureau, entitled "Scientific Testimony on Beer," which refutes 
all such statements. It is a reprint of part of the speech of Senator 
J. H. Gallinger, M. D., given m the United States Senate January 9, 
1901. It is the testimony of eminent physicians showing the injurious 
and disastrous effects of beer drinking. I submit herewith extracts 
from Senator Gallinger's speech referred to, which ought to be read 
by every beer drinker in the United States and by every defender of 
beer drinking. 

Scientific Testimony on Beer. 

[From speech by Senator J. H. Gallinger, M. D., January 9, 1901.] 
OPINIONS OP LEADING PHYSICIANS. 

The alarming growth of the use of beer among our people, and the spreading delu- 
sion among many who consider themselves temperate and sober that tne encourage- 
ment of beer drinking is an effective way of promoting the cause of temperance and 
of aiding to stamp out the demon rum, impelled the Toledo Blade to send a repre- 
sentative to a number of the leading physicians of Toledo to obtain their opinions as 
to the real damage which indulgence in malt liquors does the victim of that form of 
intemperance. 

Every one is not only a gentleman of the highest personal character, but is a physi- 
cian whose professional abilities have been severely tested and received the stamp 
of the highest indorsement by the public and their professional brethren. More 
skillful physicians are not to be found anywhere. We have not selected those of 
known temperance principles. What they say of beer is not colored by any feeling 
for or against temperance, but is the cold, bare experience of men of science vwho 
know whereof they speak. 

A BEEK DRINKING CITY. 

Toledo is essentially a beer drinking city. The German population is very large. 
Five of the largest breweries in the country are here. Probably more beer is drank, 
in proportion to the poi)ulation, than in any other city in the United States. The 

Eractice of these physicians is, therefore, largely among beer drinkers, and they 
ave had abundant opportunities to know exactly its bearings on health and disease. 
Every one bears testimony that no man can drink beer safely, that it is an injury 
to anyone who uses it in any quantity, and that its effect on the general health of 
the country has been even worse than that of whisky. The indictment they with 
one accord present against beer drinking is simply terrible. 

The devilfish crushing a man in his long, winding arms, and sucking his blood 
from his mangled body, is not so frightful an assailant as this deadly but insidious 
enemy, which fastens itself upon its victim, and daily becomes more and more the 
wretched man's master, clogging his liver, rotting his kidneys, decaying his heart 
and arteries, stupefying and starving his brain, choking his lungs and bronchia, 
loading his body with dropsical fluids and unwholesome fats, fastening upon him 
rheumatism, erysipelas, and all manner of painful and disgusting diseases, and 
finally dragging him to his grave at a time when other men are in their prime of 
mental and Dodily vigor. Here are their statements: 



268 HEPBURN BILL. 

BEER KILLS QUICKER THAN OTHER LIQUOR. 

Dr. S. H. Burden, a practitioner thirty-five years, twenty-eight in Toledo, says: 
** I think beer kills quicker than any other liquor. My attention was first called to 
its insidious effects when I began examining for life insurance. I passed as unusually 
good risks five Germans — youug business men — who seemed in the best health, and 
to have superb constitutions. In a few years I was amazed to see the whole five 
drop off one after another with what ought to have been mild and easily curable 
diseases. On comparing my experience with that of other physicians, I found they 
were all having similar Tuck with confirmed beer drinkers, and my practice since 
has heaped confirmation on confirmation. 

*^The first oi^gan to be attacked is the kidneys; the liver soon sympathizes, and 
then comes, most frequently, dropsy or Bright' s disease, both certain to end fatally. 
Any physician, who cares to take the time, will tell you that among the dreadful 
results of beer drinking are lockjaw and erysipelas, and that the beer drinker seems 
incapable of recovering from mild disorders and injuries not usually regarded of a 
srave character. Pneumonia, pleurisy, fevers, etc., seem to have a first mortgage on 
him, which they foreclose remorselessly at an early opportunity. 

BEER WORSE THAN WHISKY. 

"The beer drinker is much worse off than the whisky drinker, who seems to 
have more elasticity and reserve power. He will even have delirium tremens, but 
after the fit is gone you will sometimes find good material to work upon. Good 
management may bring him around all right. But when a beer drinker gets into 
trouble it seems almost as if you have to re-create the man before you can do any- 
thing for him. I have talked this for years and have had abundance of living and 
dead instances around me to support my opinions." 

Dr. S. S. Thorne, a physician of experience in the Army and twenty years* practice 
in Toledo, said: "Adulterants are not the most important things in my estimation, 
it is the beer itself. It stupefies his intellection because it is a narcotic and cumu- 
lative in its effects. For instance, mercurials are cumulative. A dose of one-sixteenth 
or one thirty-second of a grain would have no appreciable effect on the system, but a 
number of these administered consecutively would soon produce salivation and other 
destructive results. So beer accumulates and gathers pernicious agencies in the 
system until they become very destructive." 

BEER DRINKING SHORTENS LIFE. 

Dr. S. S. Lungren, a leading homeopathic physician and surgeon, has practiced in 
Toledo twenty-five years. "It is difficult to nnd any part of the connrmed beer 
drinker's machinery that is doing its work as it should. This is why their life 
cords snap off like glass rods when disease or accident ^ves them a little blow. Beer 
drinking shortens life. This is not a mere opinion; it is a well-settled, recognizcKi 
fact. Physicians and insurance companies accept this as un^uestioningly as any 
other undisputed fact of science. The great English physicians decide that the 
heart's action is increased 13 per cent in its efforts to throw off alcohol introduced 
into the circulation. The result is easily figured out. The natural pulse beat is, 
say, 76 per minute. If we multiply this by sixty minutes in an hour, and twenty- 
four hours in a day, and add 13 per cent, we find that the heart has been compelled 
to do an extra work during that time in throwing off the burden of a few drinks 
(4.8 ounces of alcohol) equal to 15.5 tons lifted one foot high. 

"Everywhere it is degeneration, and the ruinous work is not confined to the noto- 
rious drinkers; but everyone must suffer just in proportion to the amount he or she 
drinks. He diminishes his present powers, shortens his life, and wrecks himself." 

"a LITTLE CIRCLE OP DOCTORS." 

Dr. S. S. Thome: " If you could drop into a little circle of doctors, when they are 
having a quiet, professional chat, you would hear enough in a few minutes to terrify 
you as to the work of beer. One will say, ' What's become of So-and-So? I haven't 
seen him around lately. ' * Oh, he' s dead. ' * Dead ! What was the matter? ' * Beer. ' 
Another will say, * I've just come from Blank's. I am afraid it's about my last call 
on him, poor fellow.' * What's the trouble? ' * Oh, he's been a regular beer drinker 

for years.' A third will remark how has just gone out like a candle in a dn^ 

of wind. *Beer' is the reason given. And so on, until half a dozen physicians have 
mentioned 50 recent cases where apparently strong, heartv men, at a time of life 
when they should be in their prime, have suddenly dropped into the grave. To say 
they are nabitual beer drinkers is suflBcient explanation to any physician." 



HEPBFRN BILL. 



269 



LIFE INBUBANCE GOMPANIE8. 



"The life insurance companies make a business of estimating men's lives, and can 
only make money by makmg correct estimates of whatever influences life. Here is 
a table they use in calculating how long a normal, healthy man will probably live 
after a given age: 



Age. 



40 yean, 
20 yean. 
30 yean. 



Expec- 
tation 
(years). 



28.3 
41.5 
84.4 



Age. 



50 yean 
60yeare 
65yeare 



Expec- 
tation 
(years). 



20.2 
13.8 
11 



**Now they expect a man otherwise healthy, who is addicted to beer, will have 
his life shortened from 40 to 60 per cent. For instance, if he is 20 years old and does 
not drink beer, he may reasonably expect to reach the age of 61. If he is a beer 
drinker, he will probably not live to be over 40 or 45, and so on. There is no senti- 
ment, prejudice, or assertion about these figures. They are simply cold-blooded 
business facts, derived from experien(;e; and the companies invest their money on 
them just as a man pays so many dollars for so many feet of ground or bushels of 
wheat." 

BEBE DRINKING AND LONGEVITY. 

The president of the Connecticut Mutual Life Insurance Companv — one of the 
oldest in the country — has for years been investigating the relation of beer drinking 
to longevity, or otherwise, whether beer drinkers are desirable risks to a life insur- 
ance company. 

He declared, as the result of a series of observations carried on among a selected 
group of persons who were habitual drinkers of beer, that although for two or three 
years there was nothing remarkable, yet presently death began to strike, and then 
the mortality became astounding and uniform in its manifestations. There was no 
mistaking it; the history was almost invariable; robust, apparent health, full muscles, 
a fair outside, increasing weight, florid faces; then a toucn of cold or a sniff of ma- 
laria, and instantly some acute disease, with almost invariable typhoid symptoms, 
was in violent action, and ten days or less ended it. It was as if the system had 
been kept fair on the outside, while within it was eaten to a shell, and at the first 
touch of disease there was utter collapse; every fiber was poisoned and weak. And 
this in its main features, varying in degree, has been his observation in beer drinking 
everywhere. It is peculiarly deceptive at first; it is thoroughly destructive at the 
last. 

MAKES RECOVERY PROM INJURY DIFFICULT. 

Dr. S. S. Lungren: '* Alcohol causes a dilation of the superficial blood vessels, as it 
does of all of them, in fact. This gives the ruddy look. It is really an unhealthy 
congestion there and everywhere. Everywhere — heart, brain, stomach, liver, kid- 
neys, lungs — it breaks down, weakens, enfeebles, and invites attacks of disease, and 
makes recovery from any attack or injury precarious and difficult.** 

Dr. C. A. Kirkley, in constant practice m Toledo fifteen years, says: ** I do not 
believe the healthy organism needs an artificial prop to sustain it. Depression below 
the standard of health always follows just in proportion as the system is stimulated 
above that standard. Its enect on nutrition, the nervous system, and the circulation 
must be injurious. * * * Every physician is familiar with cases in which nervous 
wear and tear in an active life has been kept up by stimulants without apparent loss 
of power for years. Bodily and mental vigor, however, suddenly fail. The repeated 
application of the stimulus that the exertion might be prolonged has really expended 
the power of the nervous system and prepared him for more complete prostration. 
The temporary advantage was purchased at a great cost. The greater the expendi- 
ture of nervous power by the use of stimulants, the more complete the exhaustion. 
* * * On the other hand, the man who has abstained from alcoholic beverages, 
having overtaxed his nervous system, only needs a short period of rest and change 
for the renovation of his system and the recovery of mental and bodily vi^or. My 
experience is that sickness is always more fatal m beer drinkers, and serious acci- 
dents are usually fatal with them.** 

BEER DRINKERS UNPROMISING PATIENTS. 

Dr. J. T. Woods: **That confirmed beer drinkers are especially unpromising 
patients all practical surgeons agree." 



270 HEPBURN BILL. 

Dr. S. H. Burgen: " Beer drinkers are absolutely the most dangerous class of sub- 
jects a surgeon can operate on. Insignificant scratches are liable to develop a long 
train of dangerous troubles. The choking up of the sewers and absorbents of the 
body brings about blood poisoning and malignant running sores; and sometimes 
delirium tremens results from a small hurt. It is dangerous for a beer drinker to 
even cut his finger. No wound ever heals by first intention, but takes a long course 
of suppuration, sometimes with very offensive discharges. All surgeons hesitate to 
perform operations on a beer drinker that they would undertake with the greatest 
confidence on anyone else." 

BEER CRIPPLES THE LIVER. 

Dr. S. H. Burgen: "The first effect on the liver is to congest and enlarge it. Then 
follows a low grade of inflammation and subsequent contraction of the capsules, pro- 
ducing * hobnailed* or 'drunkard's liver,' the surface covered with little lumps that 
look like nail heads on the soles of shoes. This develops dropsy. The congestion 
of the liver clogs up all the springs of the body, and makes all sorts of exertion as 
difficult and labored as it would he to run a clock the wheels of which were covered 
with dirt and gum." 

Dr. W. T. Ridenour, during the war surgeon of the Twelfth Ohio Infantry, med- 
ical inspector of the Department of West Virginia, has resided in Toledo fourteen 
years, served as health officer, and been lecturer in the Toledo medical schools. The 
following is his testimony: 

*'Beer drinking overloads it, clogs it up, producing congestion, and permanently 
cripples it. One function of the liver is to separate from the blood excrementitious 
and effete substances that should be thrown off through the kidneys in the urine. 
Naturally, when the working capacity of the liver is crippled, the salts — urea and 
the urates — are imperfectly elaborated and thrown into the blood and kidneys as 
uric acid, which is very irritating to those organs and produces a long train of harm- 
ful sequelae." 

bright' S DISEASE DUE TO BEER. 

Dr. W. T. Ridenour: **I have no doubt the rapid spread of Bright' s disease is 
largely due to beer drinking. I have always believed that Bayard Taylor fell a 
victim to the German beer that he praised so highly. He died of Bright' s disease at 
50, when he should have lived, with his constitution, to a gr6en old age. He went 
just as beer drinkers are going all the time and everywhere." 

Dr. C. A. Kirkley: **I believe that forty-nine out of fifty cases of chronic Bright' s 
disease are directly produced by it. I have never met with a case in which the 
patient has not been mtemperate to a greater or less degree. The proportion mav be 
too high, but that is certainly my experience. Mr. Christian, a celebrated author, 
states that three-fourths to four-fifths of the cases met with in Edinburgh were in 
habitual drunkards." 

LIABLE TO DIE OP PNEUMONIA. 

Dr. W. T. Ridenour: "Beer drinkers are peculiarly liable to die of pneumonia. 
Their vital power, their power of resistance, is so lowered that they are liable to drop 
off from any form of acute disease, such as fevers, pneumonia, etc. As a rule when 
a beer drinker takes the pneumonia he dies. 

**My first patient was a saloon keeper, as fine a looking man physically as I had 
ever seen — tall, well built, about 35, with clear eyes, florid complexion, muscles 
well developed. He had an attack of pneumonia in the lower lobe of the right lung, 
a simple, well-defined case, which I regarded very hopefully. Doctors* are confident 
of saving 19 out of 20 such cases. I told my partner so in the evening. To my sur- 
prise he said quietly, *He'll die.' I asked w^hat made him think so. *He is a 
beer drinker,' he answered. My patient began to recover from the attack on the 
lower lobe. Suddenly the disease lighted up in the middle lobe. Finally it attacked 
the other lung, and my patient succumbed." 

DROPSY INDUCED BY BEER DRINKING. 

Dr. M. H. Parmalee, physician and surgeon twelve years in Toledo, says: **The 
majority of saloon keepers die from dropsy, arising from kidney and liver diseases, 
induced by beer drinking. My experience has been that saloon keepers and men 
working around breweries are very liable to these diseases. When one of these 
apparently stalwart, beery fellows is attacked by a disorder that would not be 
regarded as at all dangerous in a person or ordinary constitution, or even a delicate. 



HEPBURN BILL. 271 

weakly child or woman, he is liable to drop off like an overripe apjjle from a tree. 
You are never sure of him a minute. He may not be dangerously sick to-dav, and 
to-morrow be in his shroud. Most physicians, like myself, dread being called upon 
to take charge of a sick man who is an habitual beer drinker. The form of Bright' s 
disease known as the swollen or large white kidney is much more frequent among 
beer drinkers than any other class of people.'* 

SIGHT LOST — drunkard's BLINDNESS. 

Dr. J. H. Gurry, wliose specialty is diseases of eye and ear, a practitioner many 
years, says: 

** Oculists have to contend with a disease that has been named * amblyopia pota- 
torum,' or drunkard's blindness, which actually manifests itself as an atrophy of the 
optic nerve. When this proceeds to a certain stage the result is total incurable 
blindness. 

**Soelberg Wells, one of the first authorities on eye diseases, says on amblyopia: 
*Thi8 toxic effect may be produced by alcohol, tobacco, lead, or cjuinine. "^ The 
amblyopia met with in drunkards generally commences with the appearance of a 
mist or cloud before the eyes, which more or less surrounds and shrouds the object, 
rendering it hazy and indistinct. In some cases the impairment becomes so that 
only the largest print can be deciphered; but the sight may be completely lost.' 

"Stellwagen on the Eve, another author of highest repute, says: *By the complete 
giving up of alcoholics tne disease may be brought to a standstill and often cured.' " 

INSANITY CAUSED BY BEER DRINKING. 

Dr. S. S. Lungren: '* The brain and its membranes suffer severely, and after irrita- 
tion and inflammation comes dullness and stupidity. There is no question in my 
mind that many brain diseases and cases of insanity are caused by excessive beer 
drinking." 

Dr. C. A. Kirkley: ** Cinder its influence the mental powers are more inactive than 
the physical. There is hardly a single cause that operates more powerfully in the 
production of insanity; and not only that, but it excites the action of other causes 
that may be present.'' 

BEER DRINKING PRODUCES RHEUMATISM. 

Dr. W. T. Ridenour: **Beer drinking produces rheumatism by producing chronic 
congestion and ultimately degeneration of the liver, thus interfering with its function 
by which the food is elaborated and fitted for the sustenance of the body, and the 
refuse materials oxidized and made soluble for elimination by the kidneys, thus 
forcing the retention in the body of the excrementitious and dead matter I have 
spoken of. The presence of uric acid and other insoluble effete matters in the blood 
and tissues is one main cause of rheumatism." 

Dr. S. H. Burgen: "All beer drinkers have rheumatism, more or less, and no one 
can recover from it as long as he drinks beer. Notice how a beer drinker walks 
about stiff on his heels, without any of the natural elasticity and spring from the toes 
and ball of the foot that a healthy man should have. That is because the beer 
increases the lithia doposits about the smaller joints." 

'« 

CHILDREN OP DRUNKARDS — IDIOTS. 

Dr. C. A. Kirkley: ** Plutarch says, 'One drunkard begets another;' and Aristotle, 
'Drunken women bring forth children like unto themselves.' A report was made to 
the legislature of Massachusetts, I think by Doctor Howe, on idiocy. He had learned 
the habits of the parents of 300 idiots, and 145, nearly half, are reported as known to 
be habitual drunkards, showing the enfeebled constitution of the children of drunk- 
ards. I have in mind an instance where children born to the mother, begotten when 
the father was intoxicated, all died within eight months of birth. They would have 
recovered had they not had the enfeebled constitution inherited from their intem- 
perate father. Instances are recorded where both parents were intoxicated at the 
time of conception, and the result was an idiot. There is not a doubt but that 
inebriety not only makes more destructive whatever taint may exist, but impairs the 
health and natural vigor for remote generations." 



272 HEPBUEN BILL. 

"•A CROP OP LUNATICS." 

Dr. A. McFarlaod: "That *the iniquities of the fathers are visited upon the chil- 
dren;* that *the fathers have eaten sour grapes and the children's teeth are set on 
edge', are truths that no Scripture is needed i to teach. In other words, he who sing 
through physical excess does not do half the harm to himself that he does to the 
inheritors of his blood. The penalty .must be paid as sure as there is seed time and 
harvest. 

"It is your stout old hero, who goes to bed. every night with liquor enough under 
his belt to fuddle the brains of a half dozen ordinary men, and yet lives out his 
three score and ten, that will be fouhd at the head of the stock that pour into the 
world, generation after generation, such a crop of lunatics, epileptics, eccentrics, and 
inebriates as we often see. The impunity witn which one so constituted will violate 
all physical law gets its set-off in a succeeding generation, when the great harvest 
begins." 

ONLY ONE SAFE CX)URSB. 

Dr. J. T. Woods: "That beer is foreign to nature's demand is plainly evident. 
The whole organism at once sets about its removal. Every channel through which 
it can be got rid of is brought into play, and does not cease till the last trace is gone. 
Beaching a certain end depends only on the frequency of the repetition. The whole 
is made up of the parts; every drink counts one. These * ones ' added together make 
the wreck; to secure this result it is only necessary to make the single numbers suf- 
ficient. Each leaves its footprints in one way or another; and the iaea thit, because 
you stop before you stagger, the system takes no note of the damaging; material you 
put into it is a ruinous delusion." 

Dr. S. H. Bureen: "I have told you the frozen truth — cold, calm, scientific facts, 
such as the profession everywhere recognizes as absolute truths. I do not regard 
beer drinking as safe for anyone. It is a dangerous, aggressive evil that no one can 
tamper with with any safety to himself. There is only one safe course, and that is 
to let it alone entirely." 

WHY KIPLING DECLARED FOE PROHIBITION. 

One of the speakers at this hearing declared that beer was not an 
intoxicant, and emphasized his opinion by repeating it. Some people 
who oppose the average saloon, which even Bonfort's Wine and Spitit 
Circular says '4s a nuisance, a resort for all tough characters, and a 
disgrace to the wine and spirit trade," yet favor the public beer gar- 
dens such as are to be found in many large cities. To all such, allow 
us to call attention to Rudyard Kipling's testimony. 

In his American Notes, page 121, Kudyard Kipling, whose stories 
and poems are read by all the English-speaking world, tells how, in a 
concert hall in the city of Buffalo, he saw two young men get two girls 
drunk and then lead them reeling down a dark street. Mr. Kipling 
has not been a total abstainer, nor have his writings commended tem- 
perance, but of that scene he writes: 

In the heart of Buffalo there stands a magificent building which the population &o 
innocently style a music hall. Everybody comes here of an evening to sit around 
the little tables and listen to a first-class orchestra. Here I went with a friend — 

Cr or boor is the man who can not pick up a friend for a season in America — and 
e were shown the really smart folk of the city. 

One sight of the evening was a horror. The little tragedy played itself out at a 
neighboring table where two very young men and two very young women were 
seated. It did not strike me until far into the evening that the pimply young repro- 
bates were making the girls drunk. They gave them red wine and then white, and 
their voices rose with the maiden cheeks' flushes. I watched, and the youths drank 
till their speech thickened and their eyeballs grew watery. It was sickening to see, 
because I knew what was going to happen. My friend eyed the group and said: 

** Maybe they're children of respectaole people. I hardly think that, though, or 
they wouldn't be allowed out with no better escort than those boys. And yet the 
place is one where everybody comes, as you see. There may be little immoralities, 



HI3»BUBK BILL. 273 

but in that case they wouldn't be bo hopelessly overcome with two or three glasses 
of wine. They may be * * 

But whatever they were they got intolerably drunk — there in that* lovely hall, 
surrounded by the best of Buffalo society. • One could do nothing except invoke the 
judgment of heaven on those two boys, themselves half sick with liquor. 

At the close of the musical performance the quieter maiden laughed vacantly and 
protested she could not keep her feet. The four, linked arms and stajggering, flick- 
ered out into the street — drunk, gentlemen and ladies, as Davy's swine — drunk as 
lords. They disappeared down a side avenue, but I could hear their laughter until 
long after they were out of sight. And they were all children of 16 or 17. 

Then, recanting previous opinions, I became a Prohibitionist. Better it is that a 
man should go without his beer in public places and content himself with swearing 
at the narrowmindedness of the majority; better it is to poison the inside with very 
vile temperance drinks, and to buy lager furtively at oack doors, than to bring 
temptation to the lips of young fools, such as the four I had seen. I understand 
now why the preachers rage against drink. I have said, '* There is no harm in 
it, taken moderately," and yet, my own demand for beer helped directly to send 
these two girls reeling down the dark street to — God alone knows what end. If 
liquor is worth drinking, it is worth taking a little trouble to come at — such trouble 
as a man will undergo to compass his own desires. It is not ^ood that we shall let it 
lie before the eyes of children, and I have been a fool in writing to the contrary. 

WHY MINISTERS SHOULD FAVOR THIS BILL. 

The opponents of this bill brought on several German ministers 
from New York and elsewhere to testify at this hearing, who denounced 
prohibition and advocated beer drinking. We are ashamed of the 
ministerial profession when we find any representative of it marshaled 
on the side of the illegal rumseller. All such ministers ought to con- 
sider carefully the following opinions: 

As a Christian minister I oppose drink, because it opposes me. The work I try 
to do it undoes. It is an obstacle to the spread of the Uospel — nay, it is an enemy 
which assails the Gospel and whose complete success would drive the Gospel from 
the earth. — Bishop C. D. Foss. 

This traffic has wrought more harm than the three great historic scourges — war, 
famine and pestilence combined. —Gladstone. 

The liquor traffic exists in this country today only by the sufferance of the mem- 
bership of the Christian churches. They are masters of the situation so far as the 
abolition of the traffic is concerned. When they say "Go," and vote **Go," it 
will go. — Hon. Neal Dow. 

It IS a flat contradiction, it is a moral dishonor, for the church with one hand to 
excommunicate rumsellers and with the other hand to vote to legalize rumselling. — 
Joseph Cook. 

We can never create a public sentiment strong enough to suppress the dramshops, 
until God's people take hold of the temperance reform as a part of their religion. 
The time is ripe for a new campaign in opposition to this evil. An appeal is now 
made to the churches to open a fresh warfare against the bottle wherever found — in 
the social circle, on the household board, or on the counter of the saloons. — Dr.T. L. 
Cuyler. 

The Church of to-day, much more the Church of the future, must take to its heart 
the dut}^ of combining and massing its forces against that gigantic atrocity of Christian 
civilization that mothers nine-tenths of the woes and sorrows that blight and curse 
our modem age — the traffic in intoxicants, which hides its deformity under forms of 
law. The conflict is now upon us. The Church must lead in this reform. This is 
her most peculiar province. It comes in the line of the great class of moral issues 
of which she is the recognized guardian. The rum hole must be closed or the rum 
hell will engulf Christendom. If ever the pulpit had a right, the duty to flame with 
unsparing rebuke, it is here. — Bishcp R. S. Foster. 

Every minister of the Gospel in the United States ought to favor 
the Hepburn-Dolliver bill, and from wide travel and observation I 
believe that nine-tenths of them do favor it. 

One of the German speakers at this hearing, who is opposed to this 
temperance measure, spoke of the many petitions which his society 

H B— 04 18 



274 HEPBUBia^ BILL. 

sent to Congress in favor of opening the Chicago Exposition on the 
Sabbath day. I would like to recommend for his careful reading, and 
for the careful reading of all other persons who think it would be a 
good thing to open any exposition on the Sabbath day, the document 
issued by the International Reform Bureau, entitled "Sunday closing 
of expositions," which is a reprint from the Congressional Kecord of 
speeches made by Senators Hawley and Colquitt, and of Congressman 
Dingley. This is the strongest defense of Sabbath closing of exposi- 
tions that I have ever seen. The same objections to opening the Chi- 
cago Fair on the Sabbath hold against the opening or the St. Louis, 
Portland, and the Jamestown, or any other expositions on the Sabbath. 
The document referred to ought to have a wide reading, as it makes 
very clear whj^ all expositions should be closed on the Sabbath day. 
These speeches can be found in the Congressional Record of July 11, 
12, and 18, 1892. 

THE HOME-RULE ARGUMENT. 

Many of these same Germans who oppose this bill come from New 
York, where they are making a great cry for home rule as to opening 
the saloons on Sunday. This Hepburn bill is distinctly a home-rule 
bill, a bill to let the diflferent States manage the liquor traffic as they 
please. Why should the Germans demand home rule for New York 
and oppose home rule for Iowa or Maine? If they are really honest 
in their cry for home rule in New York, why do they oppose the 
Hepburn-Dolliver bill, ^Fhich will give home rule to every State in the 
Union on the liquor question ? 

GREAT INTEREST IN THE HEPBURN-DOLLIVER BILL. 

The general interest being manifested in this measure by its friends 
and foes can be seen by the many news items being sent out over the 
country from Washington concerning it. Here is a sample of such 
news items: 

More brewers, agents of distillers, and wholesalers of wines and liquors are arriv- 
ing in Washington to urge the defeat of the Hepburn bill, which aims to give States 
with local option and prohibition laws complete jurisdiction over wines and liquors 
shipped from other States, regardless of whether they are shipped in original pack- 
ages or in bulk. The brewers and liquor men are thoroughly alarmed. Thev are 
ascertaining from Senators that the temperance societies of the country are fairly 
flooding them with letters, telegrams, and petitions which urge the immediate 
passage of the bill. 

To those liquor men who have said at this hearing, that the cause of 
prohibition was everywhere going back, the following quotation from 
one of their own liquor papers, Boufort's Wine and Spirit Circular, 
may be interesting reading to them: 

A wave of prohibition is sweeping over this country from one end to the other 
that threatens to engulf and carry to destruction the entire whisky enterprise. It is 
growing stronger each day, and each day towns, cities, counties, and even States are 
added to that class in which the whisky business can not be carried on l^itimately. 

CLOSING APPEAL. 

Mr. Chairman, for all these reasons, the honor of the nation, the 
rights of the States, the interests of local self-government, and the 
welfare of humanity, all demand that this Hepburn-Dolliver bill should 
be quickly recommended by your committee and promptly passed by 
Congress. 



HEPBUBN BILL. 275 



Committee on the Judioiaey, 

House op Rbpeesentatives, 

Thursday^ March ^^ 190^,. 
The committee met at 11 o'clock, a. m., Hon. John J. Jenkins in 
the chair. 

STATEMENT OF W. M. HOITOH, ESQ., ST. LOTHS, MO. 

Mr. Chairman and gentlemen of the committee, when I appeared 
before you on the 4th instant I endeavored to establish three propo- 
sitions. The first was that the necessity for the proposed legislation 
which was supposed to exist did not exist in fact. In other words, 
that no additional legislation was needed to remove any obstacle in the 
way of the States enforcing their police regulations concerning the 
manufacture or sale of intoxicating liquors. Second, that the practi- 
cal eflPect of this measure would be to accomplish only the very thing 
alleged by all its advocates not to be their purpose. And third, that 
the legal effect of the bill would be such as has already been declared 
by the Supreme Court would be unconstitutional. 

In a subsequent communication to this committee 1 stated that if 
you believed any one of these propositions to be true I did not see how 
you could consistently report this measure, and that if you did not 
believe all of these propositions to be true it might be due in part to 
the fact that there had not been a sufficient discussion of them. 

I am inclined to believe that every member of this committee 
believes every one of those propositions to be true, and if I may be 
mistaken on that point and there should be any doubt in the mind of 
any member of tnis committee, I hope that such doubt may be dis- 
closed by questions or otherwise, because I am here to-day to do all in 
my power to resolve that doubt into certainty. 

Mr. Alexander. How many propositions weire there? You spoke 
of several propositions. 

Mr. Hough. Three propositions. 

Mr. Alexander. Now, will you briefly summarize them? I was 
not here to hear your remarks the other day, and I would like you to 
l^riefly state those propositions. 

Mr. Hough. First, the necessity for the legislation which was sup- 
posed to exist, which was stated by the members on the floor to exist 
which was stated in the report of this committee at the time this bill 
was reported in the last Congress as existing, did not in fact exist. It 
had been alleged that it was necessary to have this legislation to enable 
the States to enforce their police regulations with reierence to the sale 
of intoxicating liquors. I demonstrated that it was not necessary in 
order to enable the States to enforce their police regulations against 
either the manufacture or sale of intoxicating liquors within the State. 

Second, I stated and demonstrated, as I believe, that the only 'effect 
of the bill would be to accomplish the very thing alleged by all its 
advocates not to be their purpose. 

And third, whether or not the practical effect of the bill was the 
hidden or secret purpose of its advocates, its legal effect would be 
such as has already been declared by the Supreme Court would be 

H B— 04 19 



276 HEPBUEN BILL. 

unconstitutional, as being a delegation to the States of the power to 
regulate an interstate shipment. 

Mr. Alexander, Now, on that last proposition, was your argument 
along the line of Mr. Sherley's? 

Mr. Hough. I probably took it up where he left oflF. My argu- 
ment on that point has been printed, 1 see, and I am not now follow- 
ing the argument exactly as it was made at that time, but I am pro- 
posing to present a few new reasons why those propositions are true, 
and that can probably best be accomplished by referring to some of 
the arguments of 6ome of those who have favored this measure. 

Eecalling what I heard of the oral arguments and what I have read 
of the printed arguments on this subject I think possibly the statement 
of Judge Smith, of Iowa, went more directly to the point than the state- 
ment of any of the other gentlemen before this committee on that side, 
and yet I regret to say that he made hardly more than one statement 
with which I can agree. That was that the real issue does not involve 
prohibition or antiprohibition, temperance or intemperance, and in 
making that admission I submit, in all candor, that Jud^e Smith 
admitted away his entire case. At any rate, he clearly admitted the 
truth of my first proposition. 

When any legislation is suggested which has for its purpose ena- 
bling the States to carry into effect prohibition, there is necessarily 
involved the sociological aspect of that question; but if legislation is 
suggested which has no bearing upon that proposition and if legisla- 
tion is not needed for that purpose, then certainly the sociological 
view is not involved, and I think I am indebted to the gentleman for 
making that proposition so clear. Therefore, it must be admitted, or 
considered as admitted, that there is no necessity for the proposed 
legislation so far as to enable the States to enforce their police regula- 
tions against the sale of intoxicating liquors, within the States, is con- 
cerned. 

Yet, notwithstanding this statement by Judge Smith, he was illog- 
ical enough later on in his argument to refer to the conditions whiSi 
existed in Iowa and to the necessity of this law to enable them to cope 
with those conditions and stated, furthermore, that the purpose of 
this bill is to accomplish the very thing intended to be accomplished 
by this committee and by Congress at the time the Wilson bill was 
reported and passed. Waiving this illogicalitv, I desire to take issue 
with that statement of fact, and I feel sure that it was made without 
due considei-ation of the arguments which were made in the House 
and Senate .on that measure, and without due consideration of the 
action which was taken by this committee at that time. 

That bill was introduced in the Senate by Mr. Wilson, of Iowa, in the 
first session of the Fifty-first Congress, December 4, 1889, and was 
referred to the Committee on the Judiciary. It was reported back 
May 14, 1890, with an amendment and debated. The debate in the 
Senate ran through a period of two months, and the bill finally passed 
the Senate in the form of the present law. 

The incidental right of sale m an original package, contrary to State 
legislation, was the only phase thought to be reached by the bill as 
declared by all its advocates, and Mr. Edmunds, in discussing the effect 
which the decision of the courts in the case of Leisey v. Hardin, had 



HEPBURN BILL. 277 

had on the business of selling intoxicating liquors within the State and 
the necessity for the proposed legislation, stated: 

Now, Congress propoees to say that the right to import is not to carry the implica- 
tion of the right to sell against the policy of the State; but if you import at all, you 
must import, and when you have got it there it must take its chance with all the other 
property in the State where the health and safety of the State are concerned. 

Now, it is clear from this statement, as well as from the statements 
of all the others who advocated that measure in the Senate, that 
the sole purpose of the legislation in the Senate was to cut out the 
incidental right of sale in the original package and not to interfere 
in any degree with an interstate shipment before delivery to the 
consignee. 

Mr. Reed, of Iowa, reported the bill to the House from the Com- 
mittee on the Judiciary, but instead of reporting the Senate bill 
reported as follows: 

Strike out all after the enacting clause and insert the following: 
"That whenever any article of commerce is imported into any State from any other 
State, Territory, or foreign nation, and there held and offered for sale, the same shall 
then be subject to the laws of such State: Provided, That no discrimination shall be 
made by any State in favor of its citizens gainst those of other States or Territories 
in respect to the sale of any article of commerce, nor in favor of its own products 
against those of like character produced in other States or Territories. Nor shall the 
transportation of commerce through any State be obstructed, except in the necessary 
enforcement of the health laws of such State.'' ^ 

I call vour particular attention to the words "and there held and 
offered tor sale" as indicating clearly that it was not the intent to have 
the State laws apply until after delivery to the consignee. 

Mr. Taylor, in stating the case to the House (page 7427), said that 
under the decision of the Supreme Court in the case of Brown v. 
Houston it was thought that an interstate shipment became massed 
with the general property of the State so as to be subject to the State 
laws when it had reached its destination in the State, and that the 
decision of the Supreme Court in the case of Leisey v. Hardin had 
come as a great surprise to lawyers as well as laymen in holding that 
it did not become so massed until after the first sale in the original 
package. Under that decision he said: 

Not only must the property be consigned and delivered in the States ready for 
sale and offered for sale, but it must be once sold before interstate commerce ceases 
and commerce within the State begins. 

It is this addition which has made the trouble and which was unexpected. 

Now, what was the addition ? Only the right of sale in the original 
package after it had reached the consignee. Could the purpose of 
Congress and the purpose of this committee be more clearly defined 
than that? And on the same point Mr. Reed, of Iowa, said: 

I think no one would doubt the power of Congress to enact such a law; that is, a 
law providing that when intoxicating liquors are carried into that State as articles of 
commerce they shall be sold onljr for the purpose prescribed by the statutes of the 
State and under restrictions similar to those contained in the laws of that State. 
The pending bill would simply reach the same result in another way. Instead of 
prescribing, as Congress nught, in specific terms the restrictions which shall be 
imposed upon its traffic, its effect would be to subject it to those restrictions, so that 
in either case the same result would be reached. The one enactment would as 
certainly operate as a regulation of the traffic as would the other. 

I refer to this statement of Mr. Reed not as indorsing the legal views 
expressed therein, which may touch upon the question of the power 



278 HBPBUBN BILL. 

of delegation or the right to delegate a part of the power, but to indi- 
cate in connection with everything else that was said by all the 
members of the House, and by all of the members of the Senate, in 
connection with the report of tins bill from this conmiittee, that the sole 
purpose attempted to be accomplished at that time was to cut out the 
incidental right of sale, and not, as was argued by the State of Iowa 
in the Rhodes case, and has been stated by the advocates of the bill 
before this committee, to interfere with the shipment before delivery 
to the consignee. 

The House substitute was adopted by the House and the bill went 
to conference; the Senate refused to recede and the House did, and in 
asking the House to concur Mr. Reed stated that the only difference 
between the Senate bill and the House bill was that the Senate bill 
applied to intoxicating liquors only and the House bill was intended 
to apply to all commodities. 

It IS therefore perfectly apparent that all the statements which have 
been made before this committee to the effect that the proposed legis- 
lation is necessary in order to overcome the restricted construction of 
the Wilson law by the Supreme. Court in the Rhodes case and to 
accomplish what was the original purpose of the Wilson law are not 
supported by the facts. But it is perfectly clear that the construction 
given the Wilson act by the Supreme Court in the Rhodes case accom- 

Elishes precisely tiie purpose'wnich was proposed to be accomplished 
y the passage of that law. 

The position taken by the prohibitionists which led to the issue pre- 
sented m the Rhodes case was clearly an afterthought, based upon the 
hope that the language used could be so twisted or distorted as to 
accomplish something more than the original purpose. 

In view of these facts, can any gentleman on this committee any 
longer claim that the proposed legislation is necessary to enable the 
States to apply their laws against the sale of intoxicating liquors, or 
that it is necessary to accomplish what was proposed to be accom- 
plished at the time the Wilson law was passed, or that the Supreme 
Court in its decision in the Rhodes case in anywise restricted that pur-, 
pose? I think clearly not. 

If the purpose of the advocates of this bill and of the members of 
the committee who might be inclined to favor it, based upon the state- 
ments of those advocates, is sincere, and they mean to accomplish only 
that, why not report the same bill which was reported by this commit- 
tee at that time, and then there will be no doubt about accomplishing 
what you intended to accomplish at that time? 

ffln answer to questions from Mr. Clayton and Judge De Armond as 
to the difference in the wording of the proposed bill and the wording 
of the Wilson bill, especially with reference to the words ''within the 
boundaries of," Judge Smith stated that there was no difference, or 
at least that he would be very glad to be told what the difference was. 
It seems to me that the difference is mdical. The words in the Wilson 
law, "shall upon arrival in such State or Territory," taken in their 
commercial and legal sense carry with them the idea of destination, 
whereas the words in the proposed bill, "shall upon arrival within the 
houndary ^such State or Territory," negative the idea of destination 
and indicate the purpose to have the State law apply before the ship- 
ment reaches its destination in the State and at any time after it passes 
the boundary limits. Much was said by both 

Mr. Alexander. Please state when the end of the quotation comes 



HEPBUBN BILL. 279 

hereafter so we can tell what you are quoting and what is your own 
language. 

Mr. Hough. That quotation ended after the word "territory." In 
fact, both of them did. 

Much waa said about what any State or any prohibition community 
would do if such a law was passed, but I desire to state in this connec- 
tion that the proposed legislation must be judged by everything it is 
possible to do under it, by it, or through it, and not by what probably 
will be done. 

The gentlemen declared that it was not the purpose of this bill or of 
anybo<fy to have State laws operate extraterritorially, but in making 
such statements two views were clearly overlooked. The first is that 
if Congress undertakes to permit a State law to operate upon an inter- 
state shipment before the transit is completed it necessarily has the 
effect oi attempting to give the State laws extraterritorial effect. 
Such was emphatically declared to be so by the Supreme Court in the 
Bowman case. But with respect to the proposed legislation we are 
not to be left in doubt. The difference between the Wilson law and 
the first provisions of the proposed measure are i-adical and vital; but 
there is a section which the remarks of my brother lead me to believe 
he has never read. It is as follows: 

Sec. 2. That all corporations and persons engaged in interstate commerce shall, 
as to any shipment or transportation of fermented, distilled, or other intoxicating 
liquors or liquids, be subject to all laws and police regulations with reference to such 
liquors or liquids, or the shipment or transportation thereof of the State in which 
the place of destination is situated, and shall not be exempt therefrom by reason of 
such liquors or liquids being introduced therein in original packages or otherwise; 
but nothing in this act shall be construed to authorize a State to control or in any- 
wise interfere with the transporting of any liquors intended for shipment entirely 
through such a State and not intended for delivery therein. 

We can imagine any number of laws of a most sweeping character 
which might be enacted under this permission, but it is only necessary 
to refer to an existing law in Iowa to demonstrate its viciousness. 1 
refer to the law which forbids a common carrier from transporting any 
intoxicating liquors without first having received a certificate, and, 
mark you, it seiys Jlrst having received a certificate. 

Something was said at the last hearing about the possibility of this 
certificate being obtained by the common carrier after it comes into 
the State of Iowa, but this second provision proposes to reach outside 
of the State and control its action where it starts in any other State of 
the Union. 

Mr. Alexander. May I interrupt you there? 

Mr. Hough. Certainly. 

Mr. Alexander. Are you familiar with the Iowa law? 

Mr. Hough. Yes, sir; I quoted it in my last argument, and it is 
printed — that is, the Iowa law on this point. I do not know that I am 
lamiliar with all the provisions of all the laws of Iowa. 

Mr. Alexander. There seems to be some misapprehension in regard 
to what the Iowa law suggests in regard to liquor imported to a bona 
fide consignee. What is your opinion? 

Mr. Hough. I think you mean a bona fide consumer. 

Mr. Alexander. A bona fide consumer. 

Mr. Hough. The law makes no distinction between a consumer and 
the man who is going to receive for the purpose of selling. The 
Iowa law 

Mr. Alexander. Now, let me ask you this. Supposing you are a 



280 HEPBUR]^ BILL. 

citizen of Iowa and send to Louisville for a keg of whisky for your 
own consumption in your own household. Under the Iowa law could 
that be stopped at the borders of the State '^ 

Mr. Hough. If you should pass this bill it would be an attempt to 
give the State of Iowa permission to stop it at the borders of the State, 
because 

Mr. Alexander. That is not the point. With the law as it exists 
at present, would it stop it there? 

Mr. Hough. It would if it had validity, but the Supreme Court of 
the United States in the Rhodes case said that it could not have that 
effect. 

The Chairman. What you mean is that when Congress has acted 
then the Iowa law becomes operative? 

Mr. Hough. Exactly. If this would be held to be a constitutional 
enactment then the State law would become operative and the effect 
would be to give the State the power to stop an interstate shipment 
at the boundary, because the Iowa law draws no distinction in requir- 
ing the certificate which is required to accompany the shipment 
between a shipment that is going to be brought there for a man to sell 
and a shipment that is going to be brought there for a man to consume 
at his house. 

Mr. Brantley. The question is, under the law of Iowa as it exists 
to-day, if this pending measure is passed and is constitutional, would 
it have the effect suggested by Mr. Alexander? 

Mr. Hough. That is what I say, it would have that effect; it would 
give them permission to stop the shipment that was unaccompanied by 
a certificate at any time after it haa reached the boundary and prior 
to delivery to the consignee, and the suggestion of Judge Smith that 
they might have difficulty in catching it is no answer to that proposi- 
tion, because it does not go to the principle, and laws are not to be 
passed on the theory that you may not be able to enforce them, but 
they are to be passed on the theory that they can and will be enforced. 

Mr. Brantley. I have not read the decision of the Supreme- Court 
which decided the South Carolina dispensary case 

Mr. Hough. The case of Vance v. V andercook 

Mr. Brantley. But I have been told the Supreme Court says that 
no State can pass a law which will prohibit an individual from import- 
ing intoxicating liquors for his own use. Is that a fact? 

Mr. Hough. Yes, sir; I quoted that case in my last argument here; 
and they furthermore said that that is a right of the individual which 
is protected by the Constitution, a right existing prior to the Consti- 
tution and protected by the Constitution, and can not be[whittled away 
or legislated away in any way whatever. 

Mr. Brantley. Is it not predicated upon the interstate commece 
clause of the Constitution ? 

Mr. Hough. They said it was that clause of the Constitution *hat 
protected that right. 

Mr. Brantley. Would not that protection apply as much to the 
man that wanted to consume as the man who wanted to sell, the man 
who wanted to import? 

Mr. Hough. Congress has the right to regulate an interstate com- 
merce shipment. Now, there is a difference between interstate com- 
merce and an interstate shipment, and I refer to a decision in Iowa 
which explains all that is covered by interstate commerce, which is 
more than what is covered by the term " an interstate shipment." 



HEPBUBN BILL. 281 

Congress has said that the incidental right of sale can be separated 
from the right to make an interstate shipment, although the Supreme 
Court had previously said that the incidental right of sale was a part 
of interstate commerce; and while Mr. Reed, of Iowa, stated that they 
were surprised, in view of the former decision of the Supreme Court 
in the case of Brown v. Houston (114 U. S.), I say they need not be 
surprised, if thev will read that case a little closer, because it was 
forecast in that decision that there was a distinction between that kind 
of a case, which was a case where coal had gone in involving no ques- 
tion of original package, and a case^of where shipment can be maae in 
what can be clearly considered an original package, and they used the 
words "original package" in the case, and indicated that if it came 
from a foreign nation it would be protected in that form until after 
sale. 

In the Vance v» Vandercook case they were discussing "discrimina- 
tion " as well as the interstate-commerce clause of the Federal Consti- 
tution. The point was made that the dispensary law of South Carolina 
was invalid, because it restricted the right of individuals from the dif- 
ferent States to ship into the States. 

Mr. Alexander. The point there was that they first had to go to 
the dispensary oflScers. 

Mr. Hough. Yes; they had to go to the dispensary officers and get 
a certificate of purity. 

Mr. Alexander. And the nonresident had to go to the officer of the 
State before he could ship it in. That was in Vance against Vander- 
cook? 

Mr. Hough. Now, if there had not been this right of the individual 
to ship in for his own use the dispensary law of South Carolina would 
have been, declared unconstitutional as being discrimination, not par- 
ticularly as violating the interstate commerce clause, but as being dis- 
crimination against the citizens and the products of citizens of other 
States. 

Mr. Henry, of Texas. That is, class legislation? 

Mr. Hough. Yes; and the Supreme Court says that since that ri^ht 
exists an individual can order his liquors from any State in the Union 
and that right can not be hampered in any way, and the court says in 
the opinion that it will refer to the question of restriction later. Now, 
then, when they come to it later they find that a citizen, according to 
the laws of South Carolina, had to get a certificate of purity; he nad 
to get a sample of his proposed shipment 

Mr. Alexander. From the State chemist? 

Mr. Hough. He had to submit it to the State chemist and get a cer- 
tificate of purity. Now, the Supreme Court declared that part of the 
South Carolina dispensary law unconstitutional, because they said that 
right could not be nindered in any way whatever or impeded. 

Mr. Alexander. Now, Mr. Hough, when Judge Smith was speak- 
ing I asked him this question: "Under this bill would not liquors be 
stopped at the border of Iowa?" 

And he replied: "They certainly would not and could not be unless 
they were imported for sale, because there is no law of Iowa and 
never has been any law of Iowa which made liquors contraband. 

Mr. Hough. He is mistaken. The law of Iowa to which I referred 
this committee provides that before any common carrier — he probably 
overlooked this law, which applies to conamon carriers as distinguished 
from laws which might apply to the individual — that law says that no 



282 HEPBUBN BILL. 

common carrier can transport in the State any intoxicating liquors 
unless he first receives a certificate, which must accompany the bill of 
lading, to the eflfect that the consignee is entitled to sell. The law of 
Iowa does not say anything about the ri^ht to consume at all; it makes 
no such distinction. In every case of a shipment of intoxicating liquors 
there must be that certificate that the consignee has the right to sell. 
And if a man is receiving for his own use and does not intend to sell 
he could not get a certificate. 

Therefore the shipment could not be accompanied by a certificate 
and therefore it could not only be (seized under the laws of Iowa, if 
this bill should be passed, but it could be seized at any time before 
delivery to the consignee, even before it reached the town or city of 
its destination — any minute after it passes the boundary of the limits 
of the State — because it has not accompanying it that certificate which 
it is impossible for the man to get, because he does not intend to sell it. 
So if you could' physically carry out the law you could stop that ship- 
ment, and Judge Smith, in my opinion, did not answer your question 
correctly. 

Mr. Smith, of Kentucky. Will you embrace that provision of the 
Iowa law in your remarks? 

Mr. Hough. I am sure it was in my last remarks, but I can not 
find it. 

The Chairman. Your remarks were printed, and if you included it 
in your remarks you will probably find it there. 

Mr. Alexander. Just see if it is in your last remarks. 

Mr. Hough (after examination of printed document). It is; here 
it is. 

Mr. Alexander. What is the page? 

Mr, Hough. Page 66. I will read the law, and you will note that 
it does not distinguish between the consignee who is going to receive 
for his own use and a consignee who is going to receive for sale; but, 
for the reason which I am going to give you a little later, that makes 
no diflference with respect to tne proposed legislation, because until 
Congress passes a law prohibiting a shipment of intoxicating liquors 
from every State in the Union a common carrier is bound to deliver 
to the consignee without reference to what his purpjose is in receiving, 
and the shipper in every State in the Union is entitled to have that 
shipment delivered under the laws of his own State and the Constitu- 
tion of the United States in the absence of such prohibition by Con- 
ffress against the shipment from every State. I say I will get to that 
ater. I will read this law now. [Reading:] 

If any express company, railway company, or any agent or person in the employ 
of any express company, or of any common carrier, or any person in the employ of 
any common carrier, or if any other person, shall transportor convey between points, 
or from one place to another within this State, for any other person or persons or 
corjjoration any intoxicating liquors, without having first been furnished with a 
certificate from and under the seal of the county auditor of the county to which said 
liquor is to be transported or is consigned for transportation, or within which it is 
to be conveyed from place to place, certifying that the consignee or person to whom 
said liquor is to be transported, conveyed, or delivered is authorized to sell such 
intoxicating liquors in such county, such company, corporation, or person so offend- 
ing, and each of them, and any agent of said company, corporation, or person so 
offending, shall, upon conviction thereof , be fined in the sum of $100 for eacn offense. 

And so forth. I need not read more. The offense is deemed to be 
complete and shall be held to have been committed in any county of 
the State through or to which said intoxicating liquors are transported. 



HEPBUBK BILL. 283 

It can be prosecuted in any county of the State through which the 
shipment has gone. 

Mr. Little. That seems to meet your contention? 

Mr. Hough. It meets it fully; and I say in detennining or discuss- 
ing the legal effect of any law you must assume everything that is 
possible to be done by State legislation, but so far as Iowa is concerned 
we do not have to assume — we simply take the law as it exists. 

Mr. Alexander. Now, Mr. Hough, would these words which I will 
read put it within the case of Vance against Vandercook? 

without haying first been furnished with a certificate from and under the seal of the 
county auditor of the county. 

Mr. Hough. If you require a man to get a certificate at all, even 
where he is going to receive it for his own use, it would be declared 
unconstitutional according to the rule in Vance v. Vandercook. You 
can place no restriction on that right at all, if I understand your 
question. 

Mr. GiLLETT, of Calif ornia. Becausethey might refuse a certificate? 

Mr. Hough. Yes; and there are any number of other reasons. 

Mr. Alexander. In Vance v. Vandercook the court said the South 
Carolina act compelled a resident of the State who desired to order 
liquors for his own use to first communicate his purpose to the State 
chemist, and it deprived a nonresident of the right to ship into a State 
unless authority was previously obtained from flie officers of the^ State, 
and that these conditions are whollv incompatible with the existence 
of the right which the statute itseli acknowledges. That was in the 
case of Vance v, Vandercook. 

Mr. Hough. Yes, sir. 

Mr. Alexander. Now, with your study of the question, in your 
opinion would these words in the Iowa statute, "Without having 
first been furnished with a certificate from and under the seal of the 
county auditor of the county," put it on all fours with the statute in 
South Carolina? 

Mr. Hough. . As it is it is more objectionable than that provision in 
the South Carolina dispensary law, but if the law of Iowa attempts to 
make the distinction between the righ{ to import for sale and the right 
to import for use, and with that distinction in the Iowa law requiring 
any kind of a certificate at all, it would be on all fours with the case 
in the decision referred to. 

But for another reason, I want to call the attention of the committee 
to the fact that they can not distinguish, they can not apply anj^ law 
to a shipment before that shipment reaches the consignee without inter- 
fering with the rights of every other citizen in the United States out- 
side of that State, without reference to whether that shipment comes 
in for use or for sale, and a law of the State of Iowa which attempted 
to permit it to come in and be delivered to the consignee, provided it 
was going to come for his own use, but which would prohibit it, pro- 
vided it was going to come for sale, and which should undertake to 
submit that question of fact to any jury in the State, would be declared 
to be unconstitutional, as much so as the proposed bill; because it can 
not be interfered with on any condition until Congress undertakes to 
prohibit the shipment from a sister State. I will explain that when I 
get a little further on. 

Mr, Alexander. I would like to hear that last sentence again. 

Mr. Hough. No law of the Stat,e of Iowa would be constitutional, 



284 HEPBURN BILL. 

and Congress could not by any legislation give effect to a State law 
which would have the effect of interfering in any way with an inter- 
state shipment prior to its delivery to the consignee, even if it went for 
the purpose of sale, until Congress should pass a law prohibiting such 
shipments from every State. 

The Chairman. Now, to get at the matter practically, the very 
things that Judge Smith complains of could be prohibited under the 
laws of Iowa since the passage of the Wilson bill i 

Mr. Hough. There is no question about it. 

The Chairman. There is no legal embarrassment? 

Mr. Hough. Not the slightest. 

The Chairman. It is not the assistance of Congress that they 
need 

Mr. HouGfi. They ask Congress to help them because of the failure 
of the State agencies to enforce their laws. 

The Chairman. I agree with you on that proposition. 

Mr, Hough. And the only benefit to prohibition legislation in the 
States which could possibly come from any legislation of this kind 
would be analagous to the benefit which a community would derive 
by cutting off the head of a man to keep him from stealing. 

The Chairman. The Supreme Court of the United States is unani- 
mous on this proposition: That it is not within the power of Congress 
to prohibit the transportation of liquor into a State when it is ordered 
by a bona fide consignee. 

The Chairman. No; it does not make any difference in my judgment 
about that. 

Mr. Hough. It does not make any difference? 

The Chairman. If he sends for it. 

Mr. Hough. If he sends for it? 

The Chairman. If he sends for it, the Supreme Court says unani- 
mously: "You can not prohibit it, and it is not within the power of 
Congress to stop it." Do you agree with me on that proposition? 

Mr. Hough. Unless you pass a law — and I do not want to express 
any legal opinion on that proposition — unless you pass a law which 
says in express terms that there shall be no shipments from any State. 
If you leave that open, then the Supreme Court has said you can not 
pass a law which will have the effect of giving the State the right to 
interfere with any interstate shipment prior to delivery. 

The Chairman. The difference between your mind and mine on this 
question is this: I understand, from your argument, you say that it is 
within the power of a man in Kentucky to ship it to Iowa indifferently, 
without any reference as to whether there is a bona fide consignee 
there or not. 

Mr. Hough. No, sir; I do not say that. 

The Chairman. Then I misunderstood you. 

Mr. Hough. I say that if the man in Iowa received the liquor in 
advance of a bona fide order sent to the place of business in Kentucky, 
that that is a sale in Iowa and not a sale in Kentucky. 

The Chairman. And absolutely forbidden by the laws of Iowa, and 
all they have to do is to enforce the law thev have there. 

Mr. Hough. All they have to do is to enforce their law. Now, if a 
man in Kentucky receives an order in Kentucky for a shipment, he 
can send that order under the present state of the law — that is, the 
Federal law— he can fill that order and send that shipment to Iowa, 



HEPBURN BILL. 285 

and you can not by this bill, or any bill like it, authorize Iowa to inter- 
fere with that shipment before it reaches the consignee. 

When it reaches the consignee, under the law of Iowa, he is then 
forbidden to sell it, and it is the business of the oflScials in Iowa to 
step in then and enfore their prohibition regulation against selling, 
ana they have ample authority to do that under the construction given 
the Wilson Act by the Supreme Court in the Khodes case. 

Mr. GiLLETT, of California. Then your position is, Mr. Hough, that 
in the absence of an act of Congress prohibiting a transportation of 
intoxicating liquors — a general law — that there is a perfect right to 
ship them, where a contract is entered into, from one State to another? 

Mr. Hough. More than that. You can sue the railroad company if 
it fails to deliver. 

Mr. GiLLETT, of California. Yes. 

Mr. Hough. And you are enforcing a right, not by the laws of Iowa 
(because that right is not based on the law of the forum, but the law 
of the place where the contract is made), but you are enforcing that 
right under the laws of Kentucky or New York and the Constitution 
of the United States, and the railroad company then is in an embarrass- 
ing position. 

The Chairman. And the law to-day is exactly the same as it was 
when the Wilson bill was passed? 

Mr. Hough. Precisely. 

The Chairman. There has been no change? 

Mr. Hough. You mean the Federal law? 

The Chairman. Yes. 

Mr. Hough. Precisely; and they are to-day in precisely the same 
position with reference to the right to enforce State regulations as they 
were prior to the original-package decision; prior to the time when 
that distinction was drawn. 

The Chairman. There has been no decision of the Supreme Court of 
the United States that embarrasses the States in the least? 

Mr. Hough. Not in the slightest. In other words, I think that the 
Supreme Court stretched a point to give them the benefit they enjoy 
to-day; but that is not material to the present discussion. 

The Chairman. To repeat, the Supreme Court of the United States 
are unanimous on this point: That a person living in Iowa, in an abso- 
lute prohibition State, where the sale and manufacture of liquor is 
strictly forbidden, can not be prevented from sending into another 
State and having shipped to him liquor as long as he gives the order? 

Mr. Hough. As long as he sends in the order. 

The Chairman. He derives that right from the Constitution, and 
that right can not be impaired? 

Mr. Hough. Precisely. 

Mr. Brantley. And from the interstate-commerce clause. 

The Chairman. And from the interestate commerce clause. 

Mr. Hough. Both from that clause and from the other clause which 
prohibits discrimination against the citizens of the various States. 

The Chairman. Then what is there to legislate on when the advo- 
cates of the bill say they do not intend to prevent a man from order- 
ing liquor on his own account? 

Mr. Hough. Absolutely nothing to legislate for. As I said a while 
ago, referring to what was said when the Wilson measure was under 
discussion, they never intended to go any further than to cut out the 



286 HEPBUBN BILL. 

incidental right of sale, and when the gentlemen say, as has been said 
every day that I have been here, that the sole purpose of this pro- 
posed law is to accomplish only the very thing which was intended to 
be accomplished by the Wilson Law, they are making statements that 
are not borne out by the facts. 

When they say that the Supreme Court in the Rhodes v. Iowa case 
has given a restricted meaning to the Wilson law, I say they are mak- 
ing statements which are not lK)me out by the facts, and if the construc- 
tion which was given the Wilson law by the Supreme Court in the 
Rhodes case accomj)lishes precisely what every man in the House and 
Senate said was their purpose in accomplishing, when they passed the 
Wilson law, there is absolutely nothing to legislate upon and no neces- 
sity for any further le^slation, if the gentlemen do not want to inter- 
fere with interstate shipments, and they say they do not. 

Mr. Alexander. I want to put this in another way. If this bill 
should become a law would it prevent any bona fide shipment not 
intended for sale^ but which is transported solely for the purpose of 
actual delivery to the original consignee for his personal use and con- 
suniption? 

Mr. Hough. Certainly it would, provided they could catch it; but 
then you must always assume that you can enforce laws. 

Mr. Alexan'der. What was your answer? 

Mr. Hough. Certainly it would, because it would give them the 
right to apply a State law to an interstate shipment at any time after it 
reaches the boundary of the State and before delivery to the consignee. 

Mr. GnxETT, of California, If it got to the consignee it might be 
diflferent. 

The Chairman. I do not think we quite argee for the moment. Is 
this a correct statement of the law? 1 assume, again, that I am living 
in an absolutely prohibition State, where the manufacture and sale of 
liquor is absolutely prohibited. Now, if I want to send to Kentucky 
and have liquor snipped to me, if I order it myself, the question of 
bona fides does not arise, but the State can not prevent that shipment 
to me? 

Mr. Hough. The State of Iowa or that community has no right 

The Chairman. Or any State? 

Mr. Hough. Has no right 

The Chairman. But can a resident of the State of Kentucky or any 
person in Kentucky ship indifferently to the State of Iowa anticipating 
a customer? 

Mr. Hough. That constitutes a sale at the place of destination, as 
has been decided by the Internal Revenue Bureau as well as the courts, 
and could be prohibited or punished by the State laws. 

The Chairman. And it has been decided a number of times by the 
Supreme Court of the United States? 

Mr. Hough. Yes. 

The Chairman. When thev complain there that jugs of whisky are 
shipped into Iowa and sold tnere in that way all they have to do is to 
prosecute the parties under the State law? 

Mr. Hough. There is no question about that. 

The Chairman. And the man that sells that whisky shipped in there 
in that way is liable and always has been? 

Mr. Hough. He always has been. 

The Chairman. Then we agree on the law. 



HEPBUBN BILL. 287 

Mr. Hough. And I think somebody instanced a case of that kind 
where a number of jugs had been snipped to an express oflScer in 
advance of sale. 

The Chairman. Judge Smith did, I think. 

Mr. Hough. Which shows thev can enforce it sometimes. 

The Chairman. In Vance and Vandercook and in Scott v. Donald it 
was decided that they can not ship in advance of a customer and that 
if they do it constitutes a sale m the State to which the liquor is 
shipped. 

Mr. Hough. If it is prohibited in the State then the State laws 
would apply in that kind of a case. 

The (Jhairman. And all they have to do is to enforce the law and the 
jugs of whisky have to disappear. 

Mr. Hough. Exactly. 

The Chairman. I made that statement to a gentleman on the floor 
of the House when our friend Judge Smith was making that state- 
ment, when this bill was before the House — that all they have to do is 
to go on and enforce the laws of the State of Iowa. 

Mr. Hough, That is what I have said all the time. I said that 
the last time I was here, and I say now, that every case and every 
instance which has been cited by every person before this committee 
as indicating practical operations of dealers in prohibition sections 
have been cases with which existing laws are amply able to cope if 
properly enforced. 

And if it is true that the supreme court of Iowa has decided the flat 
question, as was stated by Judge Smith, that a C. O. D. shipment con- 
stitutes a sale at the point of deliverv, then Iowa at least is in even a 
stronger position than any of the other States to cope with the evils 
of which they complain than if that court had not attempted to over- 
rule a principle of law merchant which is supposed to have been estab- 
lished so long "whereof the memory of man runneth not to the 
contrary." 

Mr. Alexander. May I interrupt you with a question? 

Mr. Hough. Certainly. 

Mr. Alexander. It is a much disputed question among many mem- 
bers of the committee, and I want to get your idea about this: I asked 
you a moment ago whether, if this bill became a law, it would pre- 
vent any bona fide shipment not intended for sale, but which is trans- 
ported solely for the purpose of actual delivery to the original 
consignee for his personal use and consumption, and your answer was 
that it would. 

Mr. Hough. That is my answer. 

Mr. Alexander. Now, I want to ask you further whether if the 
bill contained that proviso it would be constitutional? 

Mr. Hough. A proviso — ^you mean that they could stop it if intended 
for sale and could not stop it if it was intended for use? 

Mr. Alexander. Yes. 

Mr. Hough. It would not be constitutional even then, for a reason 
which I will give you later on, because you can not interject into the 
case the question of fact as to what is the purpose; and until Congress 
prohibits absolutely the shipment from every State there exists the 
right of every shipper in tne United States to have his shipments 
reach the consignee, no matter where he is or what it may be his pur- 
pose to do with the shipment after it reaches him. 



288 HEl'BUBN BILL. 

Mr. GiLLETT, of California. And no matter what the use is to be? 

Mr, Hough, No matter what the use is to be. 

Mr. Henry, of Texas. You take the broad ground that Congress 
can not permit a State to interfere with interstate commerce? 

Mr. Hough. Exactly; that is what it resolves itself into. 

Mr. Henry. Can not delegate its power? 

Mr. Hough. Can not delegate its power. 

Mr. Brantley. Referring to this question asked you by Mr. Alex- 
ander, your position is that under the law of the State of Iowa, as it 
now exists, if we pass this bill the purpose and effect of this bill now 
pending would be that the State of Iowa would prohibit or could pro- 
hibit under the present law a man from importing liquor for his own 
pereonal use? 

Mr. Hough, Yes, sir; and more 

Mr. Brantley. One minute. But you contend that even although 
we passed it it would be an unconstitutional provision? 

Mr. Hough. Clearly. This bill would be unconstitutional for these 
reasons 

Mr. BRANTI.EY. And even although we amend this bill by eliminat- 
ing the man who imports for his own personal use, so as not to make 
him subject to the State law, that even then it would be unconstitu- 
tional? 

Mr. Hough. Clearly so. 

The Chairman. Why? 

Mr. Hough. Because you can not interfere with anv shipment 
before it reaches the consignee without trenching upon the rights of 
every other citizen in every other State than the destination of that 
shipment. 

The Chairman. Now, your answer shows that we do not understand 
each other 

Mr. Hough. Of course, you understand that a great many of these 
questions raise questions which I have covered in this address. I am 
prepared to cover all these in the remarks I have laid out, and to a cer- 
tain extent it flushes me to be asked these questions before I get to 
them in the line of argument I had laid out. I mean you get at these 

Joints before they are brought out in their strongest connection — but 
do not object to that. 

Mr, Alexander. This is a good time to bring them out. 

Mr. Hough. I do not object. 

The Chairman. This raises this question: If I am in Iowa under the 
conditions heretofore stated and I give an order to any person outside 
of Iowa to ship me liquor, no one can question the purpose I have, 
under these decisions of the Supreme Court of the Unitea States? 

Mr. Hough. That is correct; and no one can question as to whether 
I have ordered that liquor to sell it or to use it. 

The Chairman. But under the decision of the Supreme Court of the 
United States to-day no man in anv State ouside of Iowa can anticipate 
a sale and make a shipment, and if he does it 

Mr. Hough. If he does it that constitutes a sale at the place of 
deliverj, and if there is a law at the place of delivery which forbids 
or punishes sales of intoxicating liquors it would apply to that case. 

Mr. GiLLETT, of California. Then your position is this: That the 
laws of Iowa that would prevent a contract being carried out if entered 
into in Kentucky would have extraterritorial force? 



HEPBURN BILL. 289 

Mr. Hough. The court said so in the Bowman case. 

Mr. GiLLETT, of California. And it would be unconstitutional, 

Mr. Hough. Yes, sir; the Supreme Court said it in the Bowman 
case particularly. Therefore, I say that if you should even try to 
amend this bill so as to discriminate or enable the State to discriminate 
between a shipment which it mB.j be alleged is intended for sale and 
a shipment which they may think is for private consumption, it 
would still be unconstitutional if it interfered in any way with that 
shipment prior to the time when it reaches the consignee, for reasons 
and authorities that I cite later. 

Mr. Alexander. Then you think this bill is unconstitutional anyhow ? 

Mr. Hough. Clearly. 

The Chairman. If you have no objection 1 will ask you to suspend 
now, because under our rules we take a recess at this hour. 

Thereupon, at 12,30, the committee took a recess until 2 o'clock p. m. 

AFTERNOON SESSION. 

The committee met at 2 o'clock p. m., Hon. John J. Jenkins in the 
chair. 

STATEMENT OF ME. W. M. HOTJOH— Continued, 

Just before recess I had reached that point of my statement where 
I referred to a remark of Judge Smith, of Iowa, in reference to a deci- 
sion in that State on the C. O. D. question, and I stated that if it were 
true that the supreme court of Iowa had decided the flat question that 
a C. O. D. shipment constituted a sale at the point of delivery, they 
were in a better condition to cope with the evils complained of than 
any other State. I am inclined, however, to doubt that the supreme 
court of Iowa has decided the flat question in any such way, and I am 
inclined to believe that there was some other element in the case than 
the mere C. O. D. proposition which conduced to the conclusion 
reached, if, as I say, any such conclusion was reached, 

I was not able to find any decision of the supreme court of Iowa 
which covered that proposition, but in the latest volume of reported 
cases — the latest volume of the Iowa reports — the 117th Iowa, I find 
the following case. State v. Hanaphy, wnerein the court decides that 
where a traveling salesman whose principal was engaged in the sale 
of intoxicating liquors in the State of Illinois, solicited and accepted 
an order for liquor in Iowa, which order was sent to the house in Illi- 
nois and there accepted, and the goods sent C. O. D, from the princi- 
pal to the buyer, the transaction constituted interstate conmierce, and 
the salesman was not liable to prosecution under an act prohibiting 
the soliciting and filling of orders. 

That is inconsistent with the proposition that a C. O. D. shipment 
constituted a sale at the point of delivery. It rnHj be that the case 
Judge Smith has in mind was a case where a shipment was sent C. O. D. 
and the party to whom it was consigned did not call for it, and the bill 
of lading was transferred to somebody else, and the other person called 
and took it. I say it may have been that kind of a case, and if it was 
that kind of a case, then such facts constituted a sale at the point of 
delivery, irrespective of the fact that it may have been shipped C. O. D. 
The supreme court of Iowa, in the Hanaphy case, says some further 



290 HEPBUBN BILL. 

things to which I will refer later on — ^another proposition which is 
even more important than this. 

It is earnestly and seriously contended that it is not the purpose of 
this bill to interfere in any way with the rights of an individual, and 
yet those who assert this willfully or negligently ignore the fact that 
the distinction drawn by the Supreme Court in the Rhodes case, as to 
the time when State laws could first apply to interstate shipments for 
the protection of health and morals, and the enforcement of their 
police regulations, without amounting to a regulation of interstate 
commerce by the States, is absolutely necessary to protect that right 
of the individual to receive for his own use. If you attempt to ffive 
the State the right to make a State law apply before delivery, then 
instead of having that right of the individual guaranteed by the Con- 
stitution, as was said by the Supreme Court in the case oi Vance v. 
Vandercook, you tell him that that right shall be made subject to State 
law, which may prevent its ever reaching him. 

This would be the necessary conseauence of saying that an interstate 
shipment should be subject to State laws before delivery, and that at 
any time after it reaches the boundary of the State. 

in so far as Iowa is concerned this would be already accomplished by 
existing laws, because, as I have stated, the requirement of the law 
of Iowa that a certificate that the consignee has the right to sell must 
accompany the shipment absolutely excludes the idea of a shipment 
for private consumption. 

From this statement alone it is apparent that an interstate shipment 
must continue until actual or constructive delivery to the consignee, 
and so long as no State proposes to prohibit the right of the individual 
to drink, no legislation is needed which would apply to a shipment 
before actual or constructive delivery. When it reaches the consignee, 
however, he has only the right to consume it, but no right to sell it 
in violation of the State laws. 

The distinction which was drawn by the Supreme Court in the 
Rhodes case between the time when a State law would apply to an 
interstate shipment without amounting to a regulation by tne State of 
interstate commerce, and the time when its application would amount 
to a regulation of interstate commerce, is necessary for another reason. [ 

I stated in my former argument that without appreciating the fact | 
the complaint of the proponents of this bill was really against the I 
"law of sales," and I cited authorities to show that when a man in the i 
State of Iowa wrote to a firm in New York or Philadelphia, Illinois or ' 
Missouri, where the business of manufacturing or selling intoxicating ' 
liquors is permitted, and ordered the same sent to him, that that was 
a sale at the place where the order was received and accepted, and the 
fact that it was a sale at such place was not affected in any way by the 
manner of delivery. 

There is a right, however, which grows out of such a transaction 
which belongs to the seller or shipper, and which continues until actual 
or constructive delivery to the consignee. This is the right of stop- 
page in transitu, a right which is recognized and in force under both 
the common and civillaw. 

Mr. Parsons, in his work on contracts (6th ed,), says: 

If a vendor who has consigned goods to a purchaser at a distance finds that the 
purchaser is insolvent he may stop the goods at any time before they reach the pur- 
chaser. This right is called the right of stoppage in transitu. 



HEPBURN BILL. 291 

The second edition of the American and. English Encyclopedia of 
Law says: 

The right of stoppage in transitu is the right of an unpaid seller of merchandise to 
resume possession thereof after shipment and before actual or constructive delivery 
to the buyer, or some one claiming under him or for him in some capacity other than 
that of carrier or middleman, for the purpose of securing himself to the extent of 
the purchase price remaining unpaid against the insolvency of the buyer existing 
unknown to the seller at the time of the sale or arising thereafter. 

This principle clearly indicates that in contemplation of law the 
transit continues until delivery, and the fact that the transit was an 
interstate transit can not limit that fact. In every instance the transit 
must continue until actual or constructive delivery. This is a right 
which is enforced, not by virtue of the law of the forum, but by vir- 
tue of the law of the place of contract. 

If, therefore, you attempt to give the State the right to destroy any 
shipment before delivery to the consignee, actual or constructive, you 
are attempting to give the State authority to cut out a right which 
belongs to the citizens of all the other States under the laws of such 
other States. 

Again, the liability of a common carrier continues until delivery to 
the consignee, though after reasonable notice to the consignee, the lia- 
bility of carrier is transferred into the liability of warehouseman. But 
this is a legal recognition of the proposition that the transit of goods 
continues until actual or constructive delivery to the consignee, and 
that includes storage for a reasonable length of time in the ware- 
house of the carrier at the point of destination, to give notice to the 
consignee. 

In the case of the Daniel Ball (10 Wall., 565) the court said: 

In this case it is admitted that the steamer was engaged in shipping and trans- 
porting down Grand River goods destined and marked for other States than Michi- 
gan and in receiving and transportinjyj by the river goods brought from without its 
limits; but inasmuch as her agency in the transportation was entirely within the 
limits of the State and she did not run in connection with or in continuation of any 
line of vessels or railway leading to other States, it is contended that she was engaged 
entirely in domestic commerce. But this conclusion does not follow. So far as she 
was employed in transporting goods destined for other States or brought from without 
the limits of Michigan and destined to places within that State she was engaged in 
commerce between the States, and however limited that commerce may have been, 
she was, so far as it went, subject to legislation of Congress. She was employed as 
an instrument of that commerce; for whenever a commodity has begun to move as 
an article of trade from one State to another commerce in that commodity between 
the States has commenced. 

And the same rule applies to the shipment until it reaches delivery; 
even the express wagon that would deliver the goods from the railway 
station to the consignee is in that respect engaged in interstate com- 
merce. 

Mr. Brantley. Will you read that last clause again? 

Mr. Hough (reading). " She was employed as an instrument of that 
commerce; for whenever a commodity has begun to move as an article 
of trade from one State to another, conunerce in that commodity 
between the States has commenced." 

The point was made in this case that inasmuch as the part played in 
that commerce by that boat was wholly within the State; therefore it 
was no part of interstate commerce. The rule laid down by the court, 

H B— 04 20 



292 HEPBURN BILL. 

as I say, applies at the other end of the shipment as well as at the 
beginning of the shipment. To continue my quotation: 

The fact that several different and independent agencies are employed to transport 
a commodity, some acting entirely in one State and some acting through two or 
more States, does in no respect affect the character of the transaction. To the extent 
to which each agency acts in that transportation it is subject to the regulation of 
Congress. 

And the doctrine in this case was approved by the Supreme Court 
in the case of Norfolk Railroad v. Pennsylvania (136 U. S., 119). 
In the case of Rhodes v. Iowa the Supreme Court said: 

The fundamental right which ihe decision in the Bowman case held to be pro- 
tected from the operation of State laws by the Constitution of the United States was 
the continuity of shipment of goods coming from one State into another from the 
point of transmission to the point of consignment, and the accomplishment there of 
the delivery covered by the contract. 

That states clearly what the interstate shipment amounts to, where 
it begins, and where it ends. In the Bowman case there was no ques- 
tion of sale in the original package involved. The contract in such 
case is of course a contract made in another State under whose laws 
such a contract is valid, and against the enforcement of which the 
interstate common carrier could not plead a law of Iowa. His con- 
tract — ^that is, the contract of the common carrier — required him to 
deliver, and it is enforceable by the laws of the State where the ship- 
ment starts. 

. The Iowa case, to which I have referred, holds the same thing. In 
that case, State v. Hanaphy (117 Iowa, 115), the supreme court of 
Iowa said: 

All these acts — the seeking of the customer by the agent, the soliciting and taking 
of the order, its transmission to the house in another State, the shipment made, the 
transportation and delivery to the purchaser in this State — ^all unite to make up inter- 
state commerce. 

Mr. Brantley. In that connection, if it will not interrupt you, was 
not the law under which Hanaphy was prosecuted merely a statute 
against the sale of liquor, and they undertook to convict him because 
he solicited orders for a firm that was out of the State? What 1 
wanted to ask you was this : Whether or not in your opinion a State 
enactment that makes it penal for any person to solicit orders for any 
person in that State would or would not be constitutional? 

Mr. Hough. It would be unconstitutional as long as the article is 
to be regarded as a legitimate article of interstate commerce. 

Mr. Brantley. You mean that it would be unconstitutional as apply- 
ing to 

Mr. Hough. To the man who solicits the orders. 

Mr. Brantley. For a party outside? 

Mr. Hough. Yes, sir; for a party outside. It has been so decided 
in a number of cases and it was recently reaffirmed' in the case of 
Stockard v. Morgan (185 U. S., 27), where the Supreme Court says : 

All of the cases cited in the opinion of the court deny the right of a State to tax 
people representing owners of property outside of the State for soliciting orders 
within it for such owners for property to be shipped to people within the State. 

Mr. Brantley. The statute I suggested would apply to people within 
or out of the State, that it should be unlawful within the State to 
solicit an order for whisky. 



HEPBDBN BILL. 293 

Mr. Hough. That, so far as it applied to a person outside of the 
State, would be an attempt on the part of the State to regulate inter- 
state commerce, because the soliciting, as stated in the Iowa case, is a 
part of interstate commerce, and the soliciting has been declared to be 
a part of interstate commerce by the Supreme Court in a half a dozen 
cases. The State of Texas recently undertook to change the law of 
sale so as to get around that point; it had been held by the supreme 
court of Texas that the soliciting was a part — that is, the soliciting for 
a man outside of the State was a part — of interstate commerce, so they 
passed a law to the effect that if a man solicited an order in County A 
and the goods were sent pursuant to the order solicted, that it should 
be considered a sale made within that county. Last month the supreme 
court of Texas passed on that question, and they decided that it con- 
stituted a sale at the place of shipment and not at the place of delivery. 
The court says: 

It is insisted that although this may have been the law prior to the act of the 27th 
legislature (p. 262), the enect of that enactment was to change the rule. We reply 
that it is not comoetent for the legislature to define a sale and fix its locus regardless 
of the known rules of law which authorize parties to make their own contracts, 
making the place of the sale depend on the place where the property is transferred 
and tiue passes. Much less is it competent for the legislature to reverse the decisions 
of the courts upon questions of this character. While that body is supreme in the 
exercise of its functions, it can no more ^x the place of sale of liquor as between 
contracting parties in contravention of the rules of law than it can determine the 

Slace of a sale of any other commodity or than it can define what intoxicating 
quors are. If it can do the one it can do the other, and, as its whim or caprice 
might suggest, it could define away intoxicating liquors altogether. 

Mr. Brantley. Can I ask you this question, then? Is there any 
way by which a prohibition State can prohibit the business of solicit- 
ing orders for the sale of whisky in that State? 

Mr, Hough. Absolutely none. 

Mr. Brantley. It is a part of interstate commerce? 

Mr. Hough. It is a part of interstate commerce, and until Congress 
passes a law excluding it from interstate commerce it is protected in 
that respect as well as in all other respects. 

Now, from these different points of view it is apparent that when an 
interstate shipment has commenced it continues until the shipment 
reaches the consignee, and this must necessarily be so to sustain the 
proper relations of all parties under the law. 

In determining the character of a statute we are not to be guided by 
its framing. 

As was said by the Supreme Court in the case of Reed v. Colorado 
(187 U. S., 137): 

Certain principles are well settled by the former decisions of this court; one is that 
the purpose of a statute, in whatever language it may be framed, must be determined 
by its natural and reasonable effect. 

Another is that a State may not by its police regulations, whatever their object, 
unnecessarily burden foreign or interstate commerce. 

Again, the acknowledged police powers of a State can not legitimately be exerted 
so as to defeat or impair a right secured by the national Constitution, any more than 
to defeat or impair a statute passed by Congress in pursuance of the powers granted 
to it. 

A State law which prohibits or regulates the sale of intoxicating 
liquors within the State, or which might even prohibit or attempt to 
prohibit the drinking of such liquors within the State, would be a 
police regulation; but a State law which would have the effect of 
interfering in any way with delivery to the consignee of a shipment 



294 HEPBUKN BILL. 

from a sister State would not be a police regulation, but a regulation 
of interstate commerce. 

Mr. Henry. Is that the decision or your argument? 

Mr. Hough. That is my argument. I state this as the conclusion 
that I draw from all the decisions, that it would be a regulation of 
interstate commerce unless it was a legitimate inspection measure, and 
any Federal legislation which attempt to give to the States the right 
to apply their laws other than legitimate inspection measures to such 
a shipment prior to such delivery would be attempting to give the 
States the right to regulate interstate commerce, and that is exactly 
what this billattempts to do. 

It was furthermore contended that there was no diflference between 
the proposed legislation and an act of Congress which adopts State 
procedure for Federal courts in such State in certain cases. This 
argument, I think, was made by Judge Smith, and the gentleman's 
reputation as a lawyer is all that entitles this suggestion to serious 
consideration; for 1 apprehend that every lawyer present has felt the 
distinction, even if it has not expressed itself in words in his mind. 
A fair statement of it would be this, An act of Congress adopting a 
State procedure is not a delegation of power, because the act is com- 
plete m itself and is not executed by any State agency, whereas 
an act of Congress purporting to regulate interstate conamerce, which 
requires some action to be done by State agency to determine what 
such regulation is, is a delegation of the power to the State. 

If the premises of Judge Smith were correct in reference to his 
statement about procedure in Federal courts, it would not have been 
an adoption of sucn procedure by Congress, but it would have amounted 
to a delegation of power to the States to provide or establish such pro- 
cedure for the Federal courts — a thing which no State has authority to 
do under its own constitution. His premise, however, was incorrect, 
because no act of Congress that I am aware of says that the practice in 
Federal courts shall be governed or controlled by the practice estab- 
lished by the legislatures of the States, but it says that the practice 
shall conform as nearly as may be in certain cases to the practice in 
similar cases in State courts. This amounts neither to a delegation of 
authority nor adoption, so far as the Federal action is concerned, but 
is a direction to the tribunals which Congress has established requiring 
them to make their rules conform to certain conditions. 

Of course an act of Congress could adopt an act of the legislature 
of any State, provided it was something which Congress could do 
under its enumerated powers, and I apprenend that the proper distinc- 
tion between a case of adoption and one of delegation is that in the 
first case the act is complete in itself and does not require the activi- 
ties of the State to give it effect, whereas in the other case the activi- 
ties of the State agencies are called into requisition in order to deter- 
mine exactly what shall be the purpose or effect and limitation of the 
act of Congress. 

In referring to the construction given to the Wilson Act by the 
supreme cout of Iowa — and that is what is sought to be accomplished 
by this proposed bill — the Supreme Court of the United States, in the 
Rhodes case, said : 

But to uphold the meaning of the word ** arrival," which is necessary to support 
the State law, as construed below, forces the conclusion that the act of Congress in 
question authorized State laws to forbid the bringing into the State at all. 



HEPBURN BILL. 295 

And the construction contended for by the State court in that case 
is exactly what is sought to be accomplished by the proposed legisla- 
tion. In respect to tnat the Supreme Court has said that it would 
amount to authorizing State laws to forbid the bringing into the State 
at all. And again, in the same case,- the Supreme Court of the United 
States has said: 

We think that interpreting the statute by the light of all its provisions it was not 
intended to and did not cause the power of the State to attach to an interstate-com- 
merce shipment whilst the merchandise was in transit under such shipment and 
until its arrival at the point of destination and delivery there to the consignee, and 
of course this conclusion renders it entirely unnecessary to consider whether if the 
act of Congress had submitted the right to make interstate-commerce shipments sub- 
ject to State control it would be repugnant to the Constitution. 

Thus conceding that if it had had to be construed as applying before 
delivery, that is exactly what it would have amounted to, and that it 
would have been repugnant to the Constitution goes without saying; 
for, as I said before, we do not have to be told whether it will be 
repugnant to the Constitution for you to delegate authority. 

From these two paragraphs it seems to me to be perfectly clear that 
that court holds the opinion that an act of Congress which attempts to 
give the State the right to interrupt in any way an interstate shipment 
before arrival at its destination and delivery to the consignee, actual 
or constructive, would be submitting the right to a State to regulate 
an interstate shipment; and what is that, I ask, but delegation? 

It seems to me that the trouble with the advocates of this measure 
is that they have never examined the question except from one stand- 
point. If they would examine it from all points of a circle around it 
they must see the fallacies of their position. 

The right of a resident of Iowa, for illustration, to receive an inter- 
state shipment is interminably interwoven with the right of a citizen 
of any other State to have his shipment to Iowa delivered to the con- 
signee. 

Until Congress shall prohibit a shipment from every State this right 
is guaranteed by the Constitution as well as the laws of the Stete 
where the shipper resides, and can be enforced against the common 
carrier, who is thus put '^ between the devil and the deep sea;" for 
if he failed to carry out his contract to deliver in accordance with the 
law of the place where the shipment starts he can be mulcted in dam- 
ages, and if he brings it to Iowa in compliance with that contract 
without first having received the certificate, which it is impossible for 
him to get, he is fined and imprisoned. Such would be the effect of 
the proposed legislation. 

How, theti, can anyone say that you are not attempting to give 
extraterritorial effect to the laws of Iowa, or any other State to which 
it may be applied? How, then, can anyone say that you are not 
attempting to delegate power to a State to regulate and control an 
interstate shipment? 

I am unable to find the least excuse or semblance of justification, 
either in law or in fact, for the proposed legislation. As I have 
explained, it is not needed; and it seems to me it violates our sense of 
propriety and our sense of justice and it violates the Constitution. 



296 HEPBURN BILL. 



STATEMENT OF MB. BOBEBT CBAIK, OENEBAL COTTKSEL OF THE 
UNITED STATES BBEWEBS' ASSOCIATION. 

Mr. Chairman and gentlemen of the committee, it is difficult to add 
anything to the very full and learned argument which has been made 
by our friend, Judge Hough, and, as I nave had the opportunity to 
print in the report of the hearings before the committee some of the 
reasons against the constitutiondity of this bill, I will oflfer only a 
few suggestions to the committee at this hearing. I had the pleasure 
of listening to the able argument of Judge Smith, of Iowa, at the last 
hearing of the committee. In one part of the speech of Judge Smith, 
in answer to a question by Mr. Gillett, the judge took occasion to say: 

You are talking about the constitutionality of this law. We will take care of our- 
selves if you have not any law that prevents our taking care of ourselves. We are 
not asking you to take care of us; we are asking you not to interfere with us. 

If that is the position of our friends who are asking for the passage 
of this law, I should take it that the committee would have little diffi- 
culty in granting the request as made by Judge Smith. He makes 
the suggestion that if the committee, and afterwards Congress, will 
leave himself and his clients and his friends alone, that at least in the 
State of Iowa they will take care of the prohibition question. As I 
had understood the purpose of this bill, it was, in direct opposition to 
the statement as made b}^ Judge Smith, that the people of Iowa, accord- 
ing to the views of our friends on the other side, having found it 
impossible to take care of themselves, had sought the intervention of 
Congress and asked the aid of Congress in taking care of their laws 
and the violations of their laws. 

Now, gentlemen, it seems to me that it is unimportant in the dis- 
cussion of this question whether or not the goods shipped from one 
of the States of the Union into a prohibition State be shipped there 
either for the purpose of consumption or for the purposes of sale. 
If the decision of the Supreme Court in the Rhodes case means any- 
thing it means that commerce continues until the goods reach the 
hands of the purchaser, the consignee. After it has reached the 
hands of the purchaser it is then for the State law to take hold of 
those goods, and if those goods are to be sold in violation of any 
statute of the State then that violation of statute is the thing that the 
State must look after. If the goods shipped from New York to Iowa 
to some man who would desire to puvcnase them for sale could be 
seized by the officials of the State of Iowa before they reached the 
hands of the man who had made the purchase, then the interstate com- 
merce would be destroyed by the officer of the State of Iowa, because 
the officer of the State of Iowa would be taking hold of those goods 
while they were still in transitu, and under the decision of the 
Supreme Court it certainly would be in violation of the Constitution. 

There seemed to be some doubt, at this first hearing of this commit- 
tee, as to whether or not the power of Congress over interstate com- 
merce was absolute; as to how far that power of Congress extended, 
and as to whether or not there could be some question as to the dele- 
gation by Congress to the several States of the regulation of the inter- 
state shipment. We suggested from the very first, when this bill was 
before the Senate committee, that there could be no question about 
that, because since the decision in Gibbons v, Ogden it had been 



HEPBURN BILL. 297 

acknowledged by all lawyers, as we saw the question, that the power 
of Congress over interstate commerce was an exclusive and an abso- 
lute power. When the opinion in the Northern Securities case was 
handed down, and you gentlemen of the committee I have no doubt 
have read it, Mr. Justice Harlan in delivering the opinion of the court, 
in discussing this question, said — 

if, as has always been understood, the sovereignty of Congress, though lunited to 
specified objects, is plenary as to those objects, the power over commerce with for- 
eign nations and among the several States is vested in Congress as absolutely as it 
would be in a single government having in its constitution the same restrictions on 
the exercise of the power as are found in the Constitution of the United States ; that 
a sound construction of the Constitution allow^s to Congress a large discretion " with 
respect to the means by which the powers it confers are to be carried into execution, 
which enable that body to perform the high duties assigned to it in the manner most 
beneficial to the people/* 

Then he goes on to cite the case of McCulloch v. Maryland, and says: 

The Government is for all; its powers are delegated by all; it represents all, and 
acts for all, and is supreme within its sphere of action. 

Meaning that Congress had that right. 

If we are to concede, and it seems to be settled law by all of the 
decisions of the Supreme Court, that an interstate shipment continues 
until it reaches the hands of the consignee, and if we are also to take 
as settled law that the States can not seize those goods until they 
reach the hands of the consignee, if you pass this bill and give to the 
several States the right to teke hola of the goods before they get to 
the hands of the consignee, you delegate to the several States of the 
Union the power over interstate commerce, and from the decision of 
Gibbons v. Ogden down to this decision in the Northern Securities 
case, all the decisions are in unison to the effect that that can not be 
done. 

If all other questions are brushed aside, if you brush aside the ques- 
tion which my brother. Judge Hough, has discussed so ably as to 
whether the sale is made in the State where the purchase is made or 
whether the sale is to be made in the State where the delivery is made, 
brushing all those questions aside, unless you are to override the deci- 
sions of the Supreme Court that the power of Congress is an absolute 
and exclusive power, that it can not be delegated, and that the several 
States can not take hold of these goods until they reach the hands of 
the consignee, you immediately place in the hands of the States the 
control over interstate commerce when these goods have reached the 
borders of the several States. Can any other construction be placed 
on this bill? 

If you pass this bill its vitality, or efficiency, or force becomes 
effective only by virtue of some law existing or to be passed in the 
several States of this Union. The State of Iowa may have one law, 
the State of Kansas may have another law, and the State of Maryland 
another law, and so on through all the forty-odd States of this Union. 
Those States may have different laws. They may provide the machin- 
ery bj^ which these goods are to be taken hold of when they reach the 
border line; but those goods when they reach the border line and 
before delivery are articles of interstate commerce, and any law 
which says that the State may interfere with those articles of com- 
merce is unconstitutional, because the Supreme Court has said so in 
the Rhodes case. 

As I said at the last session of these hearings, in the few moments 



298 HEPBURN BILL. 

in which 1 addressed the committee, the only possible way in which 
the Congress could legislate against the traffic m alcoholic liquors is 
by the passage of an act of (5)n^ress in which the Congress would 
say that for the benefit of the entire people of this country and for the 
benefit of the people of the States the traffic in alcoholic liquors ought 
to be prohibited, and that the Congress would say with regard to 
liquors, as the Congress said in regard to lottery tickets — exactly as 
they said of lottery tickets — that for the good of the entire people flhey 
would prohibit the traffic in alcoholic liquors. That is not the bill 
that is pending here. The bill which is pending here is to give the 
several States the power to do this. 

Now, Mr. Chairman and gentlemen, what has been the suggestion 
made by our friends? They have said that in Iowa — Judge Smith 
laid great emphasis upon that — there was no law upon the statute 
book which allowed the State of Iowa to take hold of these goods 
which were shipped there for purposes of consumption. Who was to 
pass upon the question as to whether the goods were for sale or 
whether the goods were for consumption before those goods had been 
delivered? If the State of Iowa had the right to appoint an officer, if 
the State of Iowa had the right to select some cominissioner to go 
upon the border line and to take hold of those goods in the express 
car or at the station of one of the railroad companies, who was to 
decide as to whether those goods had been shipped to the consignee 
bona fide — for consumption or for purposes of sale? 

That was giving to the State the power to say as to these interstate 
commerce shipments, whether they were for sale or whether they were 
for purposes of consumption. In this case of Rhodes v. Iowa the 
court made it perfectly plain as to the intention of the Supreme Court 
on the question of when the interstate commerce ceased, and wherein 
it commenced. 

The sole question presented for consideration is whether the statute of the State of 
Iowa can be held to apply to the box in question while it was in transit from its 
point of shipment — Dallas, 111. — to its delivery to the consignee at the point to 
which it was consigned — that is to say, whether the law of the State of Iowa can 
be made to apply to a shipment from the State of Illinois, before the arrival and 
delivery of the merchandise, without causing the Iowa law to be repugnant to the 
Constitution of the United States. 

Then they go on to cite the statute of the State of Iowa, and they 
come down to this question: Has the law of Iowa any extraterritorial 
force which does not belong to the State of Illinois? If the law of 
Iowa forbids the delivery and the law of Illinois requires the trans- 
portation, which of the two shall prevail? How can the former make 
void the latter? In view of this necessary operation of the law of 
Iowa, if it be valid, the language of the court m the case of Vance v. 
Vandercook is exactly in point. It was said there: 

We think it might be safely said that State legislation which seeks to impose a 
direct burden upon interstate commerce or to interfere directly with its freedom does 
encroach upon the exclusive power of Congress. 

What else can it mean? The language is " State legislation which 
seeks to impose a direct burden upon interstate commerce." Is it not 
a burden upon interstate commerce to say that while that interstate 
commerce is going on, before the interstate commerce has ceased, some 
officer of any State in this Union can lay hands upon that interstate 
shipment and pass judgment upon the question as to whether or not 



HEPBURN BILL. 299 

that shipment is made in good faith to the purchaser for the purposes 
of sale or for the purposes of consumption t 

Is the officer in the State of Iowa to pass judgment upon the ques- 
tion as to whether or not that shipment is made in good faith to the 
fiurchaser for the purposes of sale or for the purposes of consumption? 
s the officer in the State of Iowa to pass iudement upon a sale which 
is made in the State of New York while that interstate-commerce 
shipment continues and before the interstate-commerce shipment ends; 
and is he to say — is the State to say — ^while the interstate commerce 
is going on whether or not that shipment is made in good faith or 
whether it is made in bad faith, and what is to become of it? 

The only argument oflfered for this bill is that it is necessary in order 
to give to the several States of this Union the right to regulate their 
own internal aflfairs in the question of liquors. That was the burden 
of the report which this honorable committee made at the last session 
of Congress. It was the statement which was made upon the floor of 
Congress by the advocates of this bill, in which they said ''Allow the 
several States of this Union to control their own mtemal aflfairs in 
the matter of the liquor traffic." 

Now, whether or not those goods are sold to a man in a prohibition 
State for purposes of resale or for purposes of consumption matters 
not. It remains a fact that as soon as the goods reach their ultimate 
destination, then the State law attaches. Is Congress tf ing the hands 
of the several States? Is there anything in any act of Congress which 
takes awa